55 F. 605 -

55 F1d 605

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Case Text

UNITED STATES V. PATTERSON.

60;"")

The demurrer to the petition will be sustained, and if no amendment can be made introducing an element of actual pecuniary loss, w?ich from the statements of the petition seems unlikely, judgment will be entered upon this demurrer.

UNITED STATES

"1".

PATTEHSON pt al.

(Circuit Court, D. :Ma8sachusetts. No. 1,215.
1.

February 28, 1893.)

spiracies in restraint of trade, and makes it :l misdemeanor for any person to mnke or engage in them, or to monopolize, or attempt or conspire with others to monopolize, aay part of the trade or commerce among the severnl states or with foreign nations. Held, thnt in an indictment under tliis chapter it if'! not sufficient to (leclare in the words of the stntute, but the means whereby it is sought to monopolize the market must be set out, so as to enable the court to see that they are illegal. 2. SAME. AllPgations of what was done in pursunnce of an allE'ged conspiracy are irrelevant in an indictment under this statute, and are of no avail eitlwr to enlarge 01' to take the place of the necessary allegations as to the elements of the 3. SA)[E-SCOPE OF THE ST A TL'TE. The words "trade and commerce," as used in the act, are synonymous. '1'he use of both terms in the first section does not enlarge the meaning of the statute beyond that employed in the cOlllmon-law expression, "contract in restraint of trade,"as they are analogous to the word "monopolize," used in the second section of the act. '1'his word is the basis and limitation of the statute, ami hence an indictment must show a conSnil"!I'y ill rrw+""int by engrossing or monopolizing or grasping the market. It is not sufficient simply to allege a purpose to drive certain competitors out of the field by violence, annoyance, intimidation, or otherwise.'
4.

\Vhere counts in suell indictment allege a purpose of engrossing or monopolizing tllP entire trade in question, acts of violence and intimidation may be alleged as the means to accomplish the general purpose.

At Law. Indictment in 18 counts against John H. Patterson and others for violating the act of July 2, ISBO, entitled "An act to protect trade and commerce against unlawful restraints and monopolies," (26 St. p. 20!), c. (j47.) Heard on demurrer to the indictment. Judf,Jment overruling the demurrer as to counts 4, 9, 14, and 18, and sustaining it as to the others. 'l'he sections of the statute immediately in question here are the following:
'See, however, the case of U. S. v. Workingmen's Amalgamated Council ot New Orleans, 54 Fed. 994, decided in the circuit court for tht' eastern district of Louisiana by ,Judge Billings, March 25, 18DB, in which it was held that the statute included combinations of workmen, who, by means of a strike, combined with threats, intimidations, and violence, cllused a cessation of business, which resulted in delaying, interrupting, and restraining interstate and foreign commerce.

600

. FEDERAL REPORTER,

voL 55.

"Section 1: Every contract, combitill-tion In theforln of trust or otherwise, or oonsl?ii"acy, in restraint of trade. or. commerce. among .the several states or with foreign nations, is hereby declared to· be illegal. "Sec. 2. Every person· whO shall monopolize, or attempt totnonopolize, <>1' combine or conspire with any other person or persons to monopolize, any part of the trade or commerce alllong the several states or with foreign nations, shall be deemed guilty of a m'sdeme,mor, and, on convictioD thereof, .shall be punished by tine not eXCe ding five thousand dollars, or by impris.onment not exceeding one year, or by both said punishments, in the discretion of the court."

The first ten counts of the indictment are for engaging in a can· ilpiracy in restraint of trade and comlllerce among the several states in violation of the first section of the act. 'rhe last eight counts are for a conspiracy to monopolize a part of the trade and commerce among the several states, in violation of the second section of the act. 'l'he first half of each set of counts the conspiracy, setting forth the means with various degrees of particularity, but without alleging overt acts. .The second half ()f each set repeat the allegations of the first half, adding also allegations of overt acts. In all the counts the conspiracy charged is described as being a conspiracy, (in the first set of counts'in restraint of trade, and in the second set of counts to monopolize trade,) not by means of any >contract or combination operating upon the parties to the conspiracy themselves, but by means of destroying or preventing the trade of others; so that the trade to be restrained was other peo· pIe's trade, and the monopoly sought was to be secured by driving <>ther people out of business. The first count of each set charges that the object of conspiracy was to accomplish this end by fraud and misrepresentation, deceit, threats, intimidation, obstruction, and molestation, and other un· lawful, oppressive, and vexatious means; the second charges that it was to be attained by preventing other persons from carrying- on business; the third, that it was to be attained by preventing others from engaging in business by means of threats, intimidation, etc.; the fourth, that it was to be attained by preventing others from car· rying on business by means of harassing and intimidating competitors, by threatening them, by causing them and their agents to be assaulted and injured, by inducing their agents and employes to leave their employment, by employing spies to obtain knowledge of their business secrets, by harassing and intimidating purchasers, by inducing purchasers to break their contracts and refuse to pay sums owing to competitors, by agreeing to maintain and maintaining persons so refusing to pay in the defense of suits against them, by delaying and impeding- the progress of suits, by threatening prospective purchasers with annoyance, molestation, and injury in the event of their purchasing from competitors, by causing persons to call upon such purchasers repeatedly and unnecessarily to occupy their time, and dissuading and persuading them from buying from competitors, by causing great numbers of vexatious and oppressive actions for the infringement of patents to be brought against such

UNITED S'l'ATES 11. PATTERSON.

60'1."

purchasers, by threatening intending purchasers from competitors with suits for infringement of patents, and thereby, and by other similar means, making it impossible for competitors to continue business; the fifth count of the first set gives the names of certain competitors who are engaged in interstate trade, and sets forth with still greater particularity the means by which it was the object of the conspiracy to destroy the business of those competitors. Frank D. Allen, U. S. Atty.
MEAKING OF THE ACT. In Heydon's Case, 3 Coke, 7, the barons of the exchequer lay down tha folloY;illg lUle:>; "1'01' the :>llre and true inler[Jl'd'llion of statutes in general, be they penal or ben; ficial, rest iclive Ot" en:lrg,ng of the common law, four thing's are to be discerned and cOllsidu'ed: (1) vVhat WdS the common !tn, /.Ipfol'e tlw making of the act"! was the mischief and defect against which the common law d d n t p ov d ? (3) II hat remedy the parliament hath r<,so]voed and appointe!l tn cnre the disease of the commonwealth, and (4) the true reason of the remedy." 'l'hese questions will be I1lscllSSed til tll'eu' Oluer as retating to the statute now under consideration.
(A) STATE OF THE LAW BEFOltE TIlE P,I"SDiC: OF TilE ACT.

Two questions naturnlly present themselves he!'(': (1) 'Vh"t was t'''' common law in regard to the SUbject-matter of the statute? and (2) what was the relation ot the Cniecd blates goverlllllent ;,11l1 of tHe ul1ite" dates courts to that law? '1'he terms in tile statute which naturally call for comment in this case, al'e the following: (a) "Contr;lct," (b) "comb nati.Jll," (e) "c n'"irac/," (d) "restraint of trade 01' comIllerce," (e) "Irade or ce lLmollg the scveral sttltl'S or with foreign nations," (f) "monopoli,·,e." (n) "C0ntraet." Tile meaning of this word is doment:lry, and it is not necessary to discuss it, except in counee-tion with the following words, "in restraint of trade." (b) "Combination." This word is used in the statute in a broader sense than w0rds "contnlet" on the haml and "conspiracy" on the other. It has no technical, legal signification; and the words, "combination in the form of trust or otherwise," are intended to covel' broadly any sort of a union of different persons, even thong-h such union not be sutticient to answer to the technical term "conspiracy," and may not include a binding contract. As modified by the subsequent words, "in restraint of trade," it l'efer'S to that class of cases where there is no hin'ling conlr,lct. an'l perhaps includes cases in w1,ich there arc no legal means contemplated so as to make it n conspiracy, and no sufficient union or agreement to make en!wi' ;t, lllunoDoly or a contract. (c) "Conspiracy." '.rhis is a word of well-known legal signification. It is sometimes used to indicate simply the coming together and agreeing of persons, but in a penal statute is clearly to be construed a'l in: luding Ihe idea of illegality, Cl'eated either by the illegal character of the ultimate oh,iect sought to be attained, or by the illegal character of the means by which it is contcmplated that the desired result shan be accomplished, or both of these togetiler. It is well settled at common law, and has been from early times, that conspiracies to ac.'complish a thing illegal in itself, and also conspil';L('ips to aceomplish a thing lawful in itsp]f by unlawful means, are criminal. In U. S. v. Lancaster, 44 Fed. Rep. 896, tile court say: "A conspiracy is an unlawfUl confederacy or combination of two or m:lre persons to do an unlawful act, or have aceomplished an unlawful purpose." Com. Y. Huut, 4 Mete. (Mass.) 123; Rex v. Gmy, 3 Harg. St. 'l'r. 510; Spies v.

608

FEDERAL REPORTER,

vm. 55.

People, 122 Ill. 212, 213, 12 N. E. Rep. 865, 17 E. Rep. 898; 3 Green!. l·k § 189; Washb..CriJn. Law, (2d Ed.) 42, etc. It is unnecessary to with JJicety into the question of just what ends or means are su!fiunlawful to reIJ.der a conspirac;r criminal, since it is qUlte clear tlm.t a vrhicll includes in the means for its accomplishment threats and intimidatIOn, the committing of assaults, the maintenance of actions, and the inducing of parties under contract to break their contracts, is criminal in charader. Nor is it necessary to endeavor to discriminat·e care.fully between conspiracies which are civlIly actionable and those which are criminal, since it is obvious that a criminal conspiracy is also civilly actionable if anything is done under it resulting in injury to the party complaining. (d) "Restraint of trade or commerce." These words modify each of the wOl'ds "contract," "combination," and "conspiracy." Taken in connection with the word "contract," they point to a well-known legal concpption, viz. "contract in restraint of trade." A contract, the total effect of which is to restrain trade, is void; but if the restraint upon the trade of one party to the contract be no greater than is nece,ssary to protect some interest of llie other acquired by the contract, it is evidput that the contract encourages the trade of one party as much as it restrains that of the other, and hence the public is not injured and the contract is valid. Upon tlus general principle it may be laid down that(1) An agreeUlPllt for the restraint of the trade of one of the parties thereto is valid if limited, as regards time, space, and the extent of tlw trade, to what is reasonable tmder the circumstances of the, case. (2) An for the restraint of the trade of one of the parties thereto is invalid unless so limited. Gibbs v. Gas Co., 180 U. S. 396, 9 Sup. Ct. Hep. 553; Navigation Co. v. Wiusor, 20 'Vall. fi4. See, also, Fowle v. Park, 131 U. S. 88, 9 Sup. Ct. Rep. 658; Craft v. McConoughy, 79 Ill. 846; 'Western Union 'reI. Co. v. Burlington & S. ""V. Uy. Co., 11 Ped. Hep. 1, and not,e; Hilton v. Eckersley, 6 El. & B!. 47, 66; Rousillon v. Housillon, 14 Ch. Div. 351; Collins v. Locke. L. R. 4 App. Cas. 674; MalIan v. May, 11 Mees. & W. 653; Palmer v. Stebbins, 3 Pick. 188, 193. It will be obvious that in the case put the trade is restrained by the provisions of the contract itself, and is necessarily the trade of one or more of the parties to the contract. A contract between A. and B. cannot, in and of itself, restrain the trade of C. A. and B. may agree to restrain the trade of C., but such an agreement is a contract to restrain, not a contract in restraint of trade. As to such a contraet three propositions may be laid down: (1) If the parties to the contract hav'e no business of their own similar to that to be restrained which the contract is intended to promote, the contract is illegal, and a conspiracy, not only because it restrains trade without the justification of promoting any otl1:er trade, but also because from the nature of the case it is an agreement to do another an injury maliciously and without cause. (2) If A. and B. enter int.o an agreement for tlle principal purpose of promoting and extending their own business by none but lawful means, and without any intention to create a monopoly, such agreement is valid, although it have for its natural and expected result the injury and destruction of the business of C. Such a contract, even when carried cut, does not, on the whole, and viewed in its entirety, restrain trade at since it only operates to restrain C.'s trade in so far as it operates to promote the trade of A. and B. (3) If A. and B. enter into an agreement for the purpose of promoting and extending their own business by restraining and destroying the business of C. hy the use of unlawful means, snch agreement is illegal, and a conspiracy, whether said unlawful means be of a criminal nature or not. Such a contract is illegal and a conspiracy, both because of the illegal means contemplate\l,. and because it does, when viewed in its entirety, contemplate a restraint of trade. The restraint of C.'s trade in this case is not simply the

UNITED STATES V. PATTERSON.

609

result of the promotion of the trade of A. and B., and coextensive with it, but the extent of the restraint is wholly independent of the extent of the promotion, and may be absolute and entire, without any promotion at all. This must be true whenever the means are othc'r than such as are intended and calculated to increase the trade of the contracting parties. Hence it was properly decided in :Mogul Steamship Co. v. :Macgregor, Gow & Co., 15 Q. B. Div. 47fi, 23 Q. B. Diy. 598, [1892,] App. Cas. 25, that an agreement to drive a competitor out of business by lowering prices is not illegal. In this case shipping companies formed an agreement by which they endeavored to get the business of a certain port in China by placing their rates so low that another company could not compete with them, and was obliged to give up the business. The house of lords held tbRt this was not an unlawful restraint of track; that a trader could not be prevented from charging what he pleased, althongh he did it with a view of getting the trade himself, and of driving a competitor out of the business; but it was also laid down as unquestioned law that any such restraint effected by unlawful mell11S would make the restraint illegal, lll1d that a conspiracy to enforce restraint by such means would be criminal. Tn the queen's bench division, Bowen, h J., (23 Q. B. Diy. 6]4,) after stating that a merchant may lawfully compete with another by lowering Ilis own prices to any extent, even with the intention of driving the other out of business, and then raising his own prices, says: "No man, whether trader or not, can, however, justly damage another in his commercial busin by fraud or misrcpresentation. Intimidation, obstruction, .ss and molestation are forbidden. So is the intentional procurement of a yiolation of individual rights, contractual or other, assuming always that there is no just cause for it. '£he intentional driving away of customers by a show of violence, the obstruction of actors on the stage by preconcerted the disturbance of wild fowls in decoys by the firing of guns, the impeding or threatening servants or workmen, the inducing persons under personal contracts to break their contracts,-all are instances of forbidden acts." On page 616 he defines an "illegal combination" as "an agreement by one or more to do an unlawful act, or to do a lawful act by unlawful means," and cites two criminal cases in support of thE· proposition. On page H18, after stating that in cases where there is no intimidation, molestation, or other forms of illegality, acts may be done intentionally which will injure others in their bnsiness, provided tlwy are done bona fide "in the nsp of a man's own property, in the cxereise of a man's own trade," he continues: "Bnt such legal justification would not exist when thp act was merely done with the intention of causing temporal harm, without reference to one's own lawful gain, or the lawful enjoyment of one's own rights." Particular attention is called to the cases cited by Bowen, L. J., in support of that part of his opinion which has been quoted. These cases are all quoted again in the house of lords, and amply sustain the statements that have bepn quotpd. 'l'hese casps are: Tarleton v. l\:IcGawley, Peake, 270. (driYing away customers by show of violence;) Clifford v. Brandon, 2 Camp. Wi8, and Grpgory Y. Brunswick, 6 Man. & G. 205, (preconcerted hissing of actors;) Carrington v. '£aylor, 11 EJ.st, 571, and Keeble Y. Hickeringill, Id. G71, note, (disturbance of wild fowl in decoys;) Garret v. Taylor, Cro..Iac. 567, (threatening to vex prospective purchasers with suits;) Bowen v. Hall, G Q. B. Div. 333, and Lmnhey Y. Gye, 2 El. & Bl. 216, (injuring persons by inducing other'S to break contracts with them.) It is fully recognized in the foregoing cases that a contract which contemplates the doing of any unlawful acts, eithpr as a means or an end to the injury of another, is a criminal conspiracy. It is elementary law, however, that a nepl1 not involve any binding contract. The mere agl'pcment in a common purpose is sufficient. It is obvious, moreover, that the very fundanwntal idea of "conspiracy" involves the agreement in a common purpose to injure some one or sO!1wthing outside of the conspirators themselves. The conspiracy may contpmplate the acquisition of a benefit by the consnirators, but this is not what malws it unlawful, but the fact that it also n-eceH;,;arily contemplates injury to another. A contract, or even a combination, may refer exclnsively to the property or persons of the contracting or

v.55F.no.5-39

610

FEDERAL REPORTER,'

vol. 55.

combining parties, but a conspiracy necessarily involves contemplated action against the persons or property of some outside person. It follows that, if the meaning of the words, "conspimcy in restraint of trade," is to be determined by the common-law meaning of the words separatelyconsidered, it means a conspiracy to restrain the trade of some person other than the conspirators. Such a conspiracy is illegal, and, under this statute, criminal, if it intends a restraint of such trade by any means which do not. in the nature of the' case tend to promote the trade of the conspirators in a degree equal to the restraint, especially if such means are in and of themselves unlawful. The existence of unlawful means is conclusive, both as to conspiracy and as to the restraint of trade being unjustifiable. Clearly, a conspiracy to restrain trade by threats, intimidation, molestation, violence, and the other means alleged in this indictment, falls within this definition. The whole history of the law of conspiracies in restraint of trade confirms this conclusion. 3 Steph. Hist. Crim. Law, pp. 202-227, upon "Conspiracies in Hestraint of Trade;" Wright, Crim. Cons. 144-181; Ray, Contract. Lim. 334--411. An examination of the statutes that have been passed upon the subject of conspiracies in restraint of trade shows that they are aimed at any and all restraint, whether by employes or employers, which is endeavored to be enforced by threats, intimidation, or other unlawful means. Thus 38 & 39 Viet. c. 86, § 7, makes it an offense to use violence or to intimidate to compel another to do or abstain from doing any act which he has a legal right to abstain from or to do. So in New York it is made a misdemeanor "to prevent another from exercising a lawful trade or calling, or doing any other lawful act by force of threats, intimidation, or by interfering or threatening to interfere with tools, implements, or property belong'ing to or used by another, or with the. use or employment thereof; and also to permit any act injurious to the public health, to the public morals, or to trade or com,uerce, or for the perversion or obstruction of justice or of the due administration of the law." See, also, the statutes of other states, collected in Ray, Contract. Lim., supra." It is true that most of the cases in the books are cases of intimidation on the part of workmen against their employers or against other workmen, or of employers against their workmen. But the language of the statutes and the principles of decision apply with equal force to conspiracies by any persons against the trade of other persons. (e) "Trade or commerce among the several states or with foreign nations." This subject will be discussed later. (f) "Monopolize." are much the same offenses in other branches of trade that ingrossing is in provisions, being a license or privilege allowed by the king for the sole buying and selling, making, working, or using of anything whatsoever, whereby the subject in general is restrained from that liberty of manufacturing or trading which he had before. 'l'hey are said to differ only in this: that monopoly is by patent from the king, ingrossing by the act of the SUbject, between party and party, and have been considered as both equally injUrious to trade and the freedom of the subject, and therefore equally.restrained by the common law. By the common law, therefore, those who are guilty of this offense are subject to fine and imprisonment, the offense being malum in se, and contrary to the ancient and fundamental law of the kingdom; and it is said that there are precedents of prosecutions of this kind in former days. And all grants of this kind, relating to any known trade, are void by the common law." 1 Russ. Crimes, 3ilO. "It is said that all grants of this kind, relating to any known trade, are made void by the common law as being against the freedom of trade, and discouraging labor and industry, and restraining persons from getting an honest livelihood by a lawful employment, and putting it in the power of particular persons to set what prices they please on a commodity; all which are manifest inconv,eniences to the public." Hawk. P. C. c. 79, p. 203. India Co. v. Sandys, Skin. 224. "Hence, also, it seems that the king's charter empowering particular persons to trade to and from such a place is void, so far as it gives such persons an exclusive right· of trading and debarring all others; and it

UNITED STATES V. PATTERSON.

611

seems now agreed that nothing can exclude a subject from trade but an act of parliament." Hawk. P. C. 293, note 2. In the Case of Monopolies, 11 Coke, 84, it was held that a grant by the crown of the sole making of cards within the roolm is void; and it is said that "there are three inseparable incidents to every monopoly against the commonwealth, i. e.: (1) '''l'hat the price of the same commodity will be raised, for he wllo has the sole selling of any commodity may and will make the price as he plem;eR. (2) "That after the monopoly grant·ed the commodity is not so good and merchantable as it was before, for the grantee, having the sole trade, regards only his private benefit, and not the commonwealth. (3) "It is done to the impoverishment of divers artificers and others, who before, by the labor of their own hands in their art or trade, had maintained themselves and their families, who now will of necessity be constrained to live in idl-eness and beg-gary." See, also, Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge, 11 Pet. 607; Slaughterhouse Cases, 16 Wall. 10::. As used in the statute, however, the word "monopolize" clearly does not refer to grants by the government, but to the accomplisillnent of the same result by private endeavor; and the word "monopoly," in the meaning it had at the passing of the act, and has now, is not confined to grants by the government.'l'he essential idea of an unlawful monopoly i" found not so much in the creating of a very extensive business in the hands of a single control as in the idea of preventing all other persons from engaging in such business, and thereby stifling competition. The evil of the grants from the crown lay not in the fact that they gave to the grantee a right to manufacture and sell, but in the fact that they prevented other persons from manufacturing and selling the same article. The evil is not the enlargement of ver"on's trade, but the destruction of the trade of all other persons in the S<1111e commodity. (1) If A. and B. enter into an agreement to restrain trade for the purpose crl'at!ng a monopoly by destroying all competition, either by buyin!:\, out all competitors 0\' 1';)0" driving them out of bu.siness, such agreement is illegal and void. (2) A fortiori, an agreement to restrain trade for the pUI1wse of creating a monopoly which looks to the crushing out of all competition by an Ulllawful means, whether criminal or otherwise, is invalid. It is clear that monopolies have always been unlawful at common law. 'L'1l'e difficulty is to (listinf,'1lish between such unlawful monopolies and lawful rivalry in business. The following cases point out this line of distinction: Stanton v. Allen, 5 Denio, 434; Salt Co. v. Guthrie, ;:;:; Ohio St. (JGG; J\:lorris Hun Coal CO. Y. Barclay Coal Co., 68 Pa. St. 17<:; Cr,lft Y. McConoughy, 79 Ill. 346; Richardson v. Buhl, 77 Mich. 632, 43 N. W. Rep. Enndy v. Hailroad Co., 31 Ired. Rep. 689; 'Vestern Union Tel. CO. Y. Burlington & S. W. Ry. Co., 11 Fed. Rep. 1; Dolph v. Machinery Co., 2S Fed. Rep. 553; People v. Chicago Gas Tl"llst Co., 130 Ill. 2G8, 22 N. E. ltep. 798; Manufacturing Co. v. Klotz, 41 Fed. Hep. 721; More v. Bennett, (Ill. Sup.) 29 N. E. Rep. 888.
Serond.

mn,ATION 01" 'l'HE UNITED STATES AI\D OF THE UNI'fED S'l'ATES COUHTS TO THlD SUBJECT-MA'l'TER OF THE STA'l'UTE. (1) The congress of the United States is invested by the constitution with tlw power to regulate commerce between the several states, and with foreign nations, and with the Indian tribes. It has no power over commerce, except such as is thus given to it by the constitution, and the United States courts have, and can have, no jurisdiction over any offenses against commerce, unless it be such as congress is given the power to regUlate and control. In re Greene, 52 Fed. Rep. 104. Interstate and foreign oommerce being national in character, it has been

612

FEDERAl, REPORTEU,

vol. 55.

held that the power given to congreSs to regulate sueh commerce is exclusive, and implies a prohibition against any restraints upon such commerce. This prohibition has been enforced in many cases where the United States supreme court have held laws of the states unconstitutional and void, on the ground that they amountCll to tl 1'lc'straint upon intp1'state 01' foreign COlll(:l) There are no crimes at common law against the United States, and the criminal jurisdiction of the United States courts is limited to crimes created by statutes of the. United States. Prior to the passage of the act here under discussion, there was no statutory provision of the United States making contracts, combinations, or conspira.cies in restraint of or to monopolize interstate or foreign trade crimes against the United States, so that the United States courts could have no jurisdiction over that subject-matter even if such contracts, combinations, or conspiracies were criminal at common law or under state statutes. (3) Prior to the passage of this act there was no provision giving to the United States courts even civil jurisdiction over contracts, combinations, or conspiracies upon the sole ground that such contracts, combinations, or conspiracies affected interstate or foreign trade or commerce; and such courts, therefore, had only such jurisdiction over these matters as might vest in them by reason of other circumstances, such as diff'erences in citizenship. (4) Under the power to regulate commerce among the several states it has heen held that congress has the power to regulate the transportation of individuals, of propPt1:y, and of communications, and also all instruments of such transportation and communication; and that transportation of property begins when the property is d'elivered to a common carrier for transportation to another state, and does not end until such property has completed its transportation, and has become a part of the general property of the state to which it is sent. And a state may not, even for the purpose of supposed self-protection, interfere with transportation into or through HlP state beyond what is absolutely necessary for its actual self-protection, and Within the scope of its police power. See Henderson v. Mayor, etc., U. S. 259; Railroad Co. v. Husen, 95 U. S. 465, 472. The extent of this grant to the federal govr'rnment is further seen in the following cases: Gibllons v. Ogden, 9 Wheat. 1; Welton v. State of Missouri, 91 U. S. 275; Walling v. People of Michigan, 116 U. S. 44G, 6 Sup. Ct. Hep. 454; Robbins v. Taxing Dist., 120 U. S. 4S11, 7 Sup. Ct. Rep. 592; Leisy v. Hardin, 135 U. S. 100, 10 Sup. Ct. Rep. 681; In re Rahrer, 140 U. S. 545, 11 Sup. Ct. Rep. 86l>; Trade-Mark Uases, 100 U. S. UG; Philadelphia & Southern S. S. Co. v. Pennsylvania, 122 U. S. 326, 7 SUD. Ct. R<>D. 1118. It scelllS drnr that what would be a rq;ulation of commerce within the implied prohibitton of the constitution, if attemptcd by a state, would be a sufficient object of a consp:racy by individuals to make it "in restrnint of trado among the states." Clearly it would be obnoxious to the prohibition of the eonstitution for a state to pass a law that certain nonresident cash-register companies should not be allowed to sell cash r0gisters in the state. If this wonld be unconstitutional when done by a state, clearly it would be a of trade among the states when attempted by individuals so as to make a conspiracy to accomplish it a conspiracy in restraint of trnde among the states. The conspiracy in the present case was to prevent certain corporatirms from carrying on the business of mmmfacturing and selling cash registers; and it is alleged that said corporations were carrying on this business among the spveral states, so that the would operate necessarily and directly to restrain interstate trade in such cash registers in the same way that the state regnlation did in Ll'isy v. Hardin and Hobbins v. Taxing Dist., supra. This, however, is a question to be determined at the trial.(R) EVILS TO BE REMEDIED.

Undoubtedly a prominent evil to be remedied in the minds of the framers of llw statutr' was the eoncentration of the rmtire bnsilwss of the country in certain articles in such a 111('nner as to prevent others from engaging in the same business, and thereby to prevent and stifle competition. As stated in tho

UNITED STATES V. PATTERSON.

613

title, it aims to "protect trade aDd .'ommerce from unlawful restraints and monopolies; and the evil of a monopoly lay in the prevention of others, either by prohibition from thE, sovereign power, or by power of individuals, from exercising the sallw trade. 'When, therefore, the statute made it climinal to conspire to nl'mopolize, it did not intend to make it criminal for two or more persons to unite in developing their own business by la wful means, nor for one person to sell out his business to another or to others, provided that the prevention of others from engaging in the same business was not contemplated. It did, however, intend to make it criminal to conspire to obtain the sole control of any business by means of preventing others from engaging in that business, und, a fortiori, it is so intended where the means of prevention contemplated were of an unlawful character.
(C) TilE RE)1EDY PROVIDED.

certain acts which were criminal at common law crimes against the United States when such acts are directed to the restraint or monopolizing of trade or commerce among the several states or with foreign nations, and thereby gives to the United States courts jurisdiction of such crimes. In this view the statute merely remedies the defect of the want of criminal jurisdiction at common law in the United States courts, which has been already pointed out. It is sufficient for the present case as regards several of the counts in the indictment, if this should be held to be the sole effect of the act. Thus a conspiracy to restmin trade by such unlawful means as are stated in this indictment would clearly be a criminal conspiracy at common hlw. Crump's Case, 84 Va. 927, 6 S. E. ltep. H20; State v. Donaldson, 32 N. J. Law, 157; State v. Rowley, 12 Conn. 112, 113; State v. Crowley, 41 'Vis. 271. It is not necessary that each of the means alleged should be lmlawful if taken alone, nor that they should all be proved. Com. v. Meserve, 154 Mass. 64, 27 N. E. Rep. 997. Among the means set forth in the indictment that are clearly unlawful are the following: (1) Personal violence and threats of personal violence against the agents of the Lamson Company. See Crump's Case, supra, and cases there cited; U. S. v. Lancaster, supra. (2) Unlawfully inducing the employes of and purchasers from that company to break their contracts, and maintaining them in actions brought for I-luch breaches. Bowen v. Hall, supra; Lumley v. Gye, supra; Evans v. \Valton, :36 Law J. C. P. 307; Smith, Mast. & S. 155. As to maintenance, see Ray, Contract. Lim. 293 et seq., and cases cited. (3) By bringing and threatening to bring vexatious suits against the purchasers and prospective purchasers of cash registers from the Kruse, Lamson, Boston, and Union Companies. Garret v. Taylor, Cro..Tac. GG7; Kelley v. Manufacturing Co., 44 Fed. Rep. 19; National Cash Register Co. v. Boston Cash Indicator & Recorder Co., 41 Fed. Rep. G1. (4) By falsely and fraudulently r ,presentillg that the rcgisters manufactured and sold by thp Kruse, Lmnson, Union, mHI Boston Comuanh's contained d 'fects that they did not in fact contain. See Mogul Steamship Co. v. MaC'gregor, Gow & Co., supra. - (5) By frightening such purchasers and prospective purchasers from said companips by means of tlw acts, thl'('llts, and misrl'presentations aforesaid. 'L'arleton v. McGawll'Y, Penke, :]70; Crump's Case, supra. It no argument to show that a conspiracy to restrain or to monopolize trade bv such means would be criminal at common law. 'J'hat "the statute must be construed more broadly than this, however, is clear from the fact that contracts and combinations in unlawful restraint of trade not criminal at common law, and this act is clearly intended to nUl kc' them criminal. statute was intendI'd to, :11l11 does, go further. It makes certnin acts I r. which are the subjc'ct of civil actions at cOlullIon law, when directc-d to the restraint or ll10l1Upolizing of trade or commerce between the several states or with foreign nations, crimes against the United States, therl!by giving the United States courts jurisdiction over them. This construction again, how-

The most narrow effect that can be suggested for this act is that it makes

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vol. 55.

ever, is not broad enough, since to suit the statute it also wOUld practically eliminate the words "contract" and !'combination," since ,neither a contract nor a combination in restraint of trade is civilly actionable at common law. III. The act goes still further; and makes contracts and combinations which are illegal in the sense of nonenforceable at common law, crimes against the United States when directed to the restraint 01' monopolizing of trade or commerce among the several states 01' with foreign nations. 'I'hat all three of th('se effects were intende« nppears from the act itself, since in no other way can all the terms of the act be given effect, and may also be shown by a reference to the debates in congress when the bill was pending. In the debates in the senate a number of cases are cited as showing what was meant by "restraint of trade" and "monopoly," all of wllich were civil, and not criminal, cases, and include the principle of the third proposition above laid down. Among these cases were Richardson v. Buhl,n Mich. 632. 43 N. W. Rep. 1102; Craft v. McConoughy, 79 Ill. 346; Handy v. Railroad Co., 31 Fed. Rep. 689; Fowle v. Park, 131 U. S. 88, 9 Sup. Ct. Rep. 658.(D) THE TUUE REASOK OF THE ACT.

the injurious effects of unlawful restraints and monopolies upon trade and commerce so ,far 3S congress had. the so to do; that is to say, so far as th",y were, directed against interstate or foreign commerce, its purpose being correctly stated in the title of the act. namely, "An act to protect trade and eommerce frc,m unlawful restraints and monopolies." SUFI!'ICIENCY OF THE INDICTMENT. I. So far as charging a conspiracy is concerned, the language follows the ordinary language used for that purpose, and is sufficient. II. 'The general allegation of thre,ats, intimidation, and molestation is sufficient. Reg. v. Rowlands, 17 Q. B. 671; Com. v. Dyer, 128 Mass. 70. When the charge was that the defendants "unlawfully, fraudulently, and deceitfully did conspire, combine, confederate, and agree together to cheat and defraud," it was held sufficient. Rex v. De Berenger, 3 Maule & S. 67; Wood v. State, 47 N. J. Law 461, 1 Atl. Rep. 509; Com. v. I<'uller. 132 :Mass. 5C1B; Com. v. AnllreWEl, Id. 2(;:3; Rex v. Gill, 2 Barn. & Ald. 204; U. S. v. Stevens, 44 Fed. Rep. 132; U. S. v. Gardner, 42 Fed. Rep. 829; Sydserff v. Reg., 11 Q. B. 245; Latham v. Reg., 9 Cox, Crim. Cas. 516. 'l'he gist of the offense is the conspiracy. The unlawful object or means merely give character to the conspiracy itself, and show it to have been unlawful. Rex v. Journeymen Taylors, 8 Mod. 11; State v. Glidden, 55 Conn. 46, 8 AU; Rep. :-l90. Hence the offense is complete though nothing be done in execution of the conspiracy. Rex v. Spragg, 2 Burrows,993; Rex v. Rispal, 3 Burrows, 1321; Col& R. 220; Com. v. 'ValTen, 6 Mass. 74; 'rhe Poulterers' Uns v. Com., 3 Case, (1611,) 9 Coke, 55, Moore, 813; Rex v. Edwards, (1795,) 2 Strange, 707; Hex v. Eccles, (1783.) 1 Leach, 274; Rex v. Gill, (1818,) 2 Barn. & Ald. 204. Hence, also, it is unnecessary to set out the means when the end itself is unlawful. People v. Barkelow, 37 Mich.455; Com. v. Eastman, 1 Cush. 190; State v. Stewart, 59 Vt. 273, 9 AU. Rep. 559; Bish. Dir. & Forms, § 301. In the present case the means are set out, and in some of the counts with the utmost particularity. The unlawful means set out show(1) That the conspiracy alleged was unlawful, and even criminal, at common law. (2) That the restraint of trade was real and unlawful, since clearly such unlawful acts would not tend to encourage the trade of one party whlIe discouraging that of the other. That they would tend to enable the party committing them to afterwards monopolize the tra.de by independent acts clearly only aggravates the offense. (3) That the conspil'3cy was unlawful, and even criminal, "conspiracy in restraint of trade" at common law. They thus show that the conspiracy alleged was the conspiracy intended by the statute, even if the nalTowest construction be given to the language

It thus appears that the true purpose and effect of the act were to remed.y

Vl'iITED STATES V. PATTERSON.

615

of the statute. It there was, as the government contends, an offense at common law known as "eom;piracy in restraint of trade," it was clearly exactly the offense set forth in this indictment. If, as contended by the defendants, there ·was no cOlllmon-law offense of that name, precisely the same result is arrived at hy considering the words of the statute separately, and giving to them theIr lawful eomlllon-law meaning. The defendants' argument that the words "conspIl'aey In rest.raint of tmde" arc t.o be limited so as to read "conspiracy in restraint of trade by contractual means," Is wholly unwarranted by any vrinciple of eOllstruction. In this view the word "eonspiracy" adds not.hing to t.he word "combination." The rulJ! t.hat every word of a statute is to he given effect, where possIble, is too familiar to need a full citation of authorities. U. S, v. Hartwell, (> Wall. 385,-395, 39(>; Montclair v. Uamsdell, 107 U. S. 147, 152, 2 Sup. Ct. Rep. n9l. III. The indietnlCnt snfficiently alleges that. t.he object of tIJis unlawful conspimcy was In restraint of t.rade. It not only alleges this in all the counts, in the language of t.he statute, but in cet'tain of the counts also allei-ies broadly that this object was to hlniler and prevent certain named corporations from carrying on the business of manufacturing and selling cash registers; and in certain other counts alleges that it was the object of the conspiracy to ruin and destroy the business of said eOl'lJOrations, then being cal'lied on by them; and in other counts that it was the object to hinder and prevent all corporations other than the National Oash Itegister Company from carrying on said business, and to ruin and destroy the business of such other corporations then beIng carried on by them. 'rhat the successful accomplishment of such objects as these would result in not only restraint of such trade, but also in the monopolizing of it, is clear; and such objects arc sufficient to make the conspiracy criminal, even at common law, especially when, as is alll'ged in this indictment, they are intended to be accomplished by unlawful and criminal means. IV. 'l'he indIctment sufficiently charges that the trade or commerce wIJich it was the object of the conspiracy to restrain and monopolize, was ;;trade or commerce among the several states." This is specifically alleged In the words of the statute in all t.he counts. In all the counts, also, it is eit.her specifically alleged or necessarily imillied that there was in exL;;;tence at the time of the conspiracy a trade or commerce in cash registers among the several states, that tlle defendants knew tIJis, and that the object. of the conspiracy was to restrain this specific existing trade. Some of the counts go still further, and give the names of the corporations whIch were engaged in such trade, and <,harge that the object of the conspiracy was to restraIn the trade then carried on by said named corporat.ions In cash registers among the several states. This language is clear, and as definite as the nature of the case will allow. The statute was intended to cover a conspiracy the object of which was a general restraInt or monopolizing of any trade which was of an interstate character. The conspirators would not nat.urally In such a case specify, even to thems('}ves, the specific interstate transactions which it v,rould be theIr object to restrain or monopolize, but would formulate the general intention and plan to restrain and monopolize all the trade among the staff'S In a cert..'l.in given sUhject-mattel'; for example, cash rl'gisters. The allegations nre sufficipnt to show that the restruint and monopoli'!:ing contemplated w('rc unlawful; that is, that the prevention and destruction of trade by means whieh would not involve the COITl'sponding ellcouragenlPnt of the trade of others. It is not material whether it appears on the face of the inIUct.ment that the means allPged are naturally calculated to affect interstate trade or not. It Is (listinctly alleged t.hat it was the IntE'nt of the conspiracy to restrain and monopolize int.erstate trlllie. The means are only alleged to show the unlawful character of the restraint contemplated, not to show the object of the conspiracy to have bpen against interstate trade. It is submitted, however, that the means allegpd are such as would naturally affect interstate trade when directed, as in this case, agaInst corporations engaged in interstate trade, and that the fact that they would also affect domestic trade is immaterial; and this upon the same principle upon which it is held that a state cannot tax interstate commerce even though at the same time it tax domestic commerce to the same extent. Leisy v. Hardin, 135 U. S. 100, 10 Sup.

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FEDERAL REPORTEfi,

vol. 55.

Ct. Rep. 681; Robbins v. Taxing Dist., U. S. 489, 7 Sup. Ct. Rep. 592. The means are such as would prevcnt the corporations engaged in said cash-register business from transporting' said registers from one state into another, and selling them in the latter state. All the elements required by the statute are therefore sufficiently alleged.

Elihu Root and John D. Lindsay, (also in support of the indictment,) in the interest of certain private individuals.
Fh·8t. In conspiracy the gist of the offense is the combination; and, wl10n conspiring to do a particular thing is made criminal oy statute, a (111.ar.6"O of a conspiracy to do that thing is a complete and sufficient description of the olIense. Neither the means oy which the conspirators intend to do the thing nor overt acts tOY"tU'ds the doing of it need to be alkg-cd. means nor overt act'! enter into the desctiption of the offense unless expressly made an element of the off'ense by the statute. If the statutory deRcription of the crIme is conspiring to do a thing by unJawful means. then tl10 unlawful means must Oe set out. If the statutory description is a conspiring to do a thing and an overt act, then the overt act must be set out. In the one case the unlawful means, and in the the overt acts, are elements of olIense which necessarily enter into its description, and must be averred; otherwise they need not be averred. 'l'he rules upon tlils subject are very fnlly discussed in Com. v. Barger, 37 Leg. Int. 27'1, July 2,1880, by Hare, P. J. See, also, Com. v. Hunt, 4 :M.ctc. (:\lass.) 1:!5; Rex v. Gill. 2 Barn. & Ald. 204: 2 Whart. Crim. 1'1. (4th Bd.) H25, H28; U. S. v. Donau, 11 Blatchf. 1G8; Carew v. Rntlwrford, lOCi Mass. 1; Com. v. Dyer, 128 !\Iass. 70; Heg. v. RowlandS, 17 Adol. & E. (N. S.) H71; U. S. v. Dennee, 3 Woods, 47; U. S. v. Milner, ::16 11'ed. Hep. 1,\90; U. S. v. Dm;tin, 2 Bond, 3::12; Com. v. Eastman, 1 Cush. 190; Com. v. Shedd, 7 Cush. 514. It is also the mIl', as shown by the foregoing anthoritips, among many that, whe're the character of the means to be employed is an element of the offpnse, only a g'eneral description of the means bringing it within the statutory requirement is necessary, and not a specific enumeration of particular means, e. g. false pretenses need not be set out. Second. It has been held, however, that tbis act uoes not dpscribe the offenses

which it denounces with such certainty and precision as to makc a tion of the olIense charged in the bare words of the act sufficient. T11('re must be included in the description of the olIense such furtlwr averments of fact as to show that the conspiracy charged was, indeed, the conspiracy which congress intended to make criminal. See various decisions upon the indictment in U. S v. Grenhut, in the district of Ohio, (51 Fed. Rep. 205;) in the southern district of New York, (Id. 213;) in the southern district of Ohio, 1:1 re Greene, (52 Fed. Rep. 104.) This necessity of further averment, in addition to the words of the statute, arises from the fact that congress used in the statute terms which, taken in their most general sense, wOl.ld include acts of the most innocent c11amcter, so conformable to the genEmtl principles of law that congress coulll not have intpnded to declare them 'rhus there is a great variety of contracts which are eSbcntial to till' legitimah, conduct of business, and which are uniformly enforced by nul' courtS, both of law and of equity, and yet which are to some ext('nt in 1'('81 rnint of trade. It is not to be supposp(1 that emlgress intended to make them criminal. Thus, also. the essential element of private property is monopoly. Onr wbole system of law rela.ting to prope,rty is designed io maintain and protect that monopoly. Congress, of course, did not intt'nd to make it Tn offenses under this statute it is, therefore, necessary to include such as will show that the restraint of trade, or the monopoly which is thp objPct of the conspiracy, is the kind of restraint or thc kind of monopoly which congress intendcd to denounce. '1'0 tllUS make apparent

UNITED STATES V. PATTERSON.

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the character of the object of the conspiracy and bring it within the class of objEcts which congress intended to make criminal is the sole function of all in the in(lictmpnt in addition to the charge in the words of the statut,,; and, if the objeet thus de,;;crihed if-; the object which congress intewled to i11CI11(le within tllP. words used in the statute, the indictment IS
Tltird.

The fundamental question upon the first set of counts is whether t11e destruction of a competitor's trade in the manner described is a restraint of trade within the intent of tile provision of tlte first section of tile act which makes :t conspiracy in restraint of trade criminal. T. T,) :1scertaiu what constitutes a contraet, combination, or conspiracy iu 1'('s1raint of trade, reC0urse must be had to Ow common law for the proper dctinilion of til'ese geneml terms, and to aseertain whether the acts charged COlllt' Within the st:itute. In re Ureene, 5:! F·ed. ltep. 104. II. The statute enumerates three distinct facts, viz.: (a) Contracts in restraint of trade; (b) combinations in the form of t111stS or otlwnvise in restraint of tl',](le; (c) conspiruci,'s in rcstmint of trade. I<:ach one of these points to a separate and distinct dass of cases in which, prim' to the passage of the act, the courts of amI Ameriea had e(JIldenmed acts injurious to the Imblie interest, because of their e1iect upon tradl'. In all three the princ'iple of decision and the ground of eonllemnation ]mcI !)('Cll that thcy illtPrfered with the public's right to have trade ancI coml;dition in tmete amI unrcstricted. (1) The first of acts inC'lwl"d the ordinmoy contracts which were <lechred to be void as ag-ninst public policy, because some of the contracting parties thereby prevented themselves from pursuing their Occup'ltions, and til(' public was thus deprived of their contribution to the competition tlJerein. .Judge Bradley states the rule r('ganling these cases in Knvigation Co. v. Winsor, 20 'Vall. G4, in these words: "Thl're nrc two principal groulIlls on which the doctrine is founded that a contract in restraint of tmde is void as against public policy: Olle is the injnry to till' public by being d('!Il'iYPd of the r('s1 t'ictc'd party's industry; tIte other is tl1(' injury to tlw party lJimsdf by being- Ill'ee!ulJed from pnrsuing his occupatioll, and thus l>eing prevc'nll'd from sllp!Jor1ing himsPlf and his 1·amily. It is m'j(ll'llt that both these evils occur when the contract is gl'neral, not tv pursue O1ll"S trade at all, or not to pursue it in the entire n"llm or Cflurtry. The coun1TY suffers the loss in both eases, a.nd the party is deprived of his occupation, or is obIigell to expatriate himself in onler to follow it. A eontract that is open to such grave objections is clearly against Im!)lic l>olicy." (:!) Thc) second division of the statute, viz. combinations in the form of trusts or otherwise in restraint of trade, points to a class of cases Which, while it may include th" first class, includes nlso a great number of eornbinntions llistinguislwd froIrl ordinm'y contracts in restraint of trade by a broad line of demarcation. T]lPse are eOlllhinations in which there is no contraet, which either hy its expn'ss terms or by implication binds tJle contracting party not to IllS trade, or not to compete freely with others, but wilich are dedared by the courts in violation of public policy, because they a.ccomplish the effect of preventing freedom of trade and competition. As a rule the agreements and arrangements by '''hieh these combinations are fOrlllf'cl are the!1lSl']vPS, in their terms and requirenH'nts, of the most ilm'mless allrl innocent chnradcr. It is the e(l'ecl, and the effect alom" upon the pu!)lic interest which eausps them to be declared again"t public policy. 'rlwfollOWing are ilIustl'ations of tllis clasR: Huoker v. Vandewater, 4 Denio, Stanton v. Allen, 5 Denio, 4.3,1; Amot Y. Coal Co., fi8 N. Y. 5[';8; Monis Hun COllI Co. v. Barclay ConI Co., fiS Pa. S1. 1n; Clancpy v. Manufacturing Co., nz Barb. 395; People v. North River Sugar Refinery Co., 54 Hun, 354, 7 K Y. SUPP. 406; People v. North River Sugar Refinery Co., 121 N. Y. 582, :!4 N. E. Rep. 834; Hilton v. Eckersley, n M. & BI. 47; Craft v. MeConoughy, if! HI. B4(); Sl\lt Co. v. Guthrie, 35 Ohio St. nnn; Richardson v. Bulll, 77 l\fieh. 632, 43 N. 'V. Rep. 1102; U. S. v. Jellico Mountain Coal & Coke Co., 46 l"ed. Rep. 432; Biscuit & Manuf'g Co. v. Klotz, 44 F'ed. Rep. 721; Hoff-

618

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55.

?rl.

nian'v. Br60ks;nWkiy.: Law BuI. 258; State v. Strwda:rd Oil (OhIo Suo.) 30 N. E. Rep. 279. " " , So lUI the artangemEmtsor agreements in regard to tl'ade made by II cOlllbiwltlOn produce the injurious effect, no form of controd 01' devise to produce that effect iildirectly avails to escape the conseqlH'ucPS. (iJ) The third division of section 1-"conspiracips in rpstmint of refers us to u cIass of cases in which the effect upon trade j,; prodnc('{l,. not by contmct obligations binding the not to comppte, not hy pooling lll'nlnlrements which make it against the party's interests not to compete, but by preventing others from currying on trade. An essential element in these cases is that the IJl'evention shall be, not means of competition itself in the ordinaJ'Y course of busincss,-onc COll'petitoI' llriving out another by fair competition,--but that the prevention Rliall be by unfair means,which are themselves llriYate injuries to the person whose trade is interfered with. lJollspiraeies to destroy or injure another's business such means have always been actionable beoause of tllP lll'ivate injmy, and indictable because of the public injury, upon the same grounds and for the same reasons which have led the courts to declare contracts and combinations accomplishing the same effect void as against public policy The law upon the subject is very fully pl'csented in Mogul Steamship Co. v. McGregor, Gow & Co., 23 Q. B. Div. GIlB, GOli, (IB92,) App. Cas.

Conspiracies among laborers to to coerce thEir employers, to prevent other laborers from worldng, a.re familiar illuRtrations of this principloe. Rex v. Bykerdike, 1 Moody & R UIl; See Rex v. Eccles, 1 Leach, Iteg, v. HeWitt, G Cox, Crim. Cas. 162; Heg. v. Duffield, Id. 40J; Reg. v. Druitt, 10 Cox, Clim. Cas. Gil:!; Heg. Y. Howl:lllds, 5 Cox, Cdm, Cas. 436; People v. Fishe'r, 14 'Vend, 11; People Y. i\lt'lvin, :! 'Vheeler, Crim. Cas. Master Stevedores' ASS'll v. 'Walsh, 1; People v. \ViIzig, 4 N. Y. Crim. R. 40iJ; State v. Stewart, 511 Vt. :!7B, \) AU. Hep. 5511; Crump's (;aso, 84 Va. 927, (; S. E. Rep. G20; i:-1tate v. Donaldson, 32 N. J. Law, 157; y, Glidden, 55 ('AIm. 76, 8 AU. Rep. 890; People v. 'Walsh, 15 N. Y. St. Rep. 17; Steph. Dig. Crim. Law, 390; People v. li1 Hun, 19, 3 N. Y, Supp.612. (1) It appears from the foregoing review that at tIle time the act now llmlel' cOllsideration was passed restraint of trade, as known to the law, was preventing anyone from freely {!xeI'cising his trade. That this prevention was held to be ngainst public polley, because it deprived tbe public of the benefit of the preveuted industry and of its competition with others; that all contracts which had that effect were held to be void, because they produced that public injury; that all combinations which had that effect, ,directly or indirectly, were held to be lllllawful. oc"Cuuse they produced that injury; that all conspiracies to produce that effect upon others by threat.'l, intimidation, fraud, and other similar means were beld to be criminal, becau>:e they prodtwed that same pUblic injury. Clearly these were the conspirn.cies intended and aptly described in the language of the first section of the statute. (5) 'I'he means described in general terms in the first count of the indictment and particularly enumerated in the fourth anll fifth counts, are the very' means which have always been held to make inteI1'erence with busilieS8 unlawfUl, and to make a con8pil'(wy to interfere with bUl"iness through other lIlstrulllentality a criminal conspirac-y. Mogul Steamship Co. v. Meflrl'lwr, Gow & Co., supra. (6)- 'I'l1e prevention of competition by unlawful intcl1'et'ence with the business of competitors was one of the ways of producing this kind of public injUl-Y, which was at the :time this act was passed well known through judicial decisions,' and it was present in the mind of congress when it passed the uct. See 21 Congo Rec. pt. 3, pp. 2598. It is part of the judiciul history of the country that, plio1' to the passage of the net, several of thp directors of ' the Standard Oil Company had been convicted in the state of New York ofa conspirac-y to dI;ve one oiits competitors out of business by violent and 'dangerous methods, the conspirators going so fal' as to attempt the destruction of the competitor's property. See People v, Everest, 51

UNITED STATES 'V. PATTERSON.

619

Hun, 19, 3N. Y. Snpp. 612. The indictment in that case was for a conspiracy (under section 168 of the New York Penal Code) to commit an act injurious to trade. It will be observed from the foregoing extracts and the cases therein referred to that congress had in mind as one of the evils at which this act was aimed the suppression of competition as well by means operating upon other persons than the guilty combiners as by the direct means of the agreelllent entered into between those combiners. (7) Counsel for the defendants has referred to many state statutes which l,e says were designed to apply only to offenses by way of contract operating only upon the persons combining. He omits to observe that in all these states combination to produce the same effect by unlawful means operating Upon others were already criminal at common law, and by already existing statutes; e. g. the statute of New York, malting it a. criminal "conspiracy to do any a.ct injurious to trade or commerce." It was, thet'efore, unnecessary for the states which had existing statutes of this description, and which had a common law, to include in their acts designed for the protection of free competition in provisions affecting such conspiracies as are shown in the present indictments. But when congress undertook to assert over interstate commerce the same protection which the common law and the statutes of the several states gave to commerce within their respective limits, there is no warrant whatever for E'c'lying that congress did not mean to cover the entire field as broaoly as the whole body of common law, and legislation in the respective states covered it within their respective limits. 'l'he ,vord "conspiracy" is appropriately aoded to the words "contract" and "combination in form of trust or otherwise," to accomplish this complete design. (8) idea that there is any distinction in substance between what counsel for the defendant calls "contractual restl"'.llnt of trade" and the restraint cbarged in this indictment is wholly illusory, for conspiracy is a con· tract just as much as any illegal combination. '.rhe only element of contract in either is the agreement of the parties to accomplish a given result. That agreement mayor may not include specifically the means by which they intend to accomplish it. This element of is, indeed, common to all the offenses denounced in the first section of the act. It is to be found in the contracts, in the combinations, and in the conspiracies there described. It is, however, thP. only contractual element which is essential to any of the offenses described in that section, and this same contractual element must necessarily be shown in every case of criminal conspiracy. All the authorities which had declared the law of trusts and trust combinations at the time the act was passed agreed that in declaring that the illegal object to accomwhich the minds of the parties met together, made their agreement illegal, wholly irrespective of its form, or of the means by which they intended to accomplish the object. It seems quite absurd to contend that when congress struck at an evil which the courts had declared rendered every combination which produced it illegal, entirely irrespective of its form or avowed purpose, congress nevertheless meant to except combinations which produced that same evil by means already recognized as unlawful. The court is asked by the defendants to deprive an express substantive provision of the stHtute of all mea.ning whatever, to say that it adds nothing to the other provisions of the statute, for the purpose of inferring that congress meant to make it criminal to produce the given result of preventing competition by means otherwise lawful, and not to make it criminal to produce the same result by means otherwise unlawful.
FOU1·th.

The ftUldamental question upon the second set of counts is whether a monopoly acquired by destroying the trade of competitors in the manner dpscribed is a Jll(.nopoly within the intent of the provision of the second section of the act, which makes a conspiracy to monopolize criminal. In the debate upon this act in the senate, Mr. Edmunds quoted from Webster's Dictionary the following definition of the verb "to monopolize:" "To engross or obtain by any means the exclusive right of, especially the right of trading to any place or with any country or district; as to monopolize the

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vol. 55.

India or Levant trade." 2 ,Pike, El.ist. 'Cl'ime, p. 102. And see' St. 23, .Tanlt's I. ce. 331-333; 4 St. at Large,p. 734; 'rhe Case of Monopolies, 11 Coke, 85a. The words of llw statute are brOtH! enough to inclnde all appropriatioll of trade to the e1'clusioll of others. It is equally manifest, that from the application of those words must, be excluded all appropl'iation of trade to the exclusion of others which is done muit'r warrant of law, such as the obtaining' of a by ll'tters patent, the obtaining of a monopoly by Hw ordinary purchase of property, the obtaining' of a monopoly by the ordinary process of fair competition and trade as tlte result of supeIior intdligencl', industry, or activity. Starting with tlll' original well-understood and eommonly received meaning of the word, and this of pxelusion, we find that there remains a elnss of monopolies with which the courts have of recent ypal'S become very familial', whieh are created wholly without warnmt of law, which have all the charlwterlstics and all the injul'ious effects of the famous mOllopolies of Queen l'Jlizabeth's time, and which are accomplished by a more or less direct violation of the rules above considered against restraint of trade. 'l'he jUdicial condemnation of such monopolies is an pxtension of tllP principles to restraint of trade. 'fhe monopoly is treated as the extreme evil rl'snlting from restraint of trade upon a large seale. This vipw of l1lonopolips is illustrated and fully shown in the easps relating to combinatiolls citl'd undpr the third head of this bripf. Whatever dsl' nUQ' or may not be included within the term "to monopolize," as used in the statute, it is safe to say that it dol'S include the accomplishml'nt of the dfects above described by any acts which constitute an unlawful restraint or prevention of trade.
F({t1t.

The counsel for the dpfenuants saJ's that, unll'ss the construction for which he contpnds is put UPOIl the act, its range is almost unlimited; and he gOE'S so far as to assert that, under the theory upon which this indictment is drawn. a very large proportion of all till' sl'liolls crimes within tllP states could bl' brought within the federal jurisdietion. His argument for this assl'rtion rl's1..s upon certain propositions of law relating to. climinal responsibility for crimes resulting Ullintl'ntionally from unlawful confedE'raeies. A conspirator is held equally guilty with his eonfpderate for a murder (01' other higher offense than the one contemplatE'd) COllllllittpd by thl' latter iu the perpptration of a preconcerted offNlsl' by both only wlwn the higher offense is the natura! result of the cdnll' intl'nded, or is eommitted as a means of successfully l'ffl'eting the intended purpose. So, where one of the conspirators deviates from the original plan, 01' llndl'r1..akes to do something out of the range of the purpose contemplated, tIll' otlwr is not climinally responsible for this result. Our only purpose in referring to propositions is to express our dissent from the view taken by the counsel for the defemlants.-that, upon our construetion, thl' commi&'lion of nny aet, howevpr affecting or interfering with interstate eonll1lPrce, wouM rpnder the pprpe1..rator of such act liable to prosecution under the act of eongrl'ss, no matter wllPthE'r the interference was intentional or otherwise. It h; not necessary to discuss this point. 'Ve allege a conspiracy to do eertnin things '''hicll we contend do rpstmin trade. The question of whether the acts committed by the eonspirators arp intentional or not is one. for the tlia!. If the acts the government to prove as evWence of the conspiracy wpre unintentionally done, or were committed without any design of aceomplishing a result that, in contemplation of law, would eonstitute a rC's1..raint of tmde or monopoly, within the meaning of the act, proof to that effeet would 1](' propl'r mattl'r of defensl'. In answer to the rpmaining portion of dpfl'ndants' argument on this head, it is only neeessary to say that the jurisdiction of the fl'deral eourts is not necessarily exclusive. An act may be a violation both of the l,Lws of the United Statl's and of the state where it is committed; and it does not affect the question of federal jmisdiction that the defendants intended to use means themselves the subject of prosecution under the state hnvs.
Six/h. It is npcessary that the restraint of trade charged should lJe a restraint of

trade among the scvpral states.

UNITED STATES V. PATTERSON.

621

Upon that point it seems sufficient to say that it is so charged. There is no doubt, uncertainty, or question in the language of tlie which describes that element of the offense. '''.I'rade among the several states" has been described and defined by the supreme court of the United in numerous cases. Gloucester Perry Co. v. State of Pennsylvania, 114 U. S. 20:J, 5 Sup. Ct. Rep. 82G; Lyng v. Michigan, 185 U. S. 1G1, 10 Sup. Ct. l{(,p. 72;); Ficklcn v. Taxing Dist., 145 U. S. 1, 12 Sup. Ct. Itep. 810. The language of the statute obviously and clcarly applies to all trade coming within til;! t d,·sl·rilltioll. '.I'here is not onc kind of trade among the several states to which the statute was intended to apply, and another kind to which it was not intended to apply. As there is no lIDcertainty or in regard to this clement of the offense, the charge, which states this element of the offensc in the words of the statute, is sufficient. In some of the counts, howevcr, the indictment does go beyond the necessities of pleading, and charges not only that the conspiracy was in restraint of trade and commerce among the several states, but that it waH to llPstroy that trade, and that it was to destroy that trade by practices which, umler the principles above stated, would constitute the destruction,-the very kind of restraint of trade which congress had in mind. There can be no under this statute whether the means which the conspirators had in mind wen' adequate or appropriate to accomplish the destruction of trade among the states. As we havc seen, the means are not an essential element of the offense. They have no relevancy to the except as they may serve to characterize the nature of the restraint proposed by the conspirators, and show that it is the kind of restraint which congress had in mind. So long as the restraint was of the Idnd which congress had in mind, then it is immaterial whether it was in fact possible that tradc could be destroyed by it. The offense of conspiring to destroy interstate trade by that particular kind of restraint was committpd when the agreenwnt of the conspirators took place, whether ever have or ever can or could accomplish their object. IGach of the three elements of the offense is clearly and definitely charged. l.'irst, the conspiracy; second, the restmint, which is shown to be the kind of restraint which congress had in mind; and, third, the thing to be restrained, which is charged to be the tiling whieh the act clearly and definitely described. 2 Hish. St. Crimes. (8th Ed.) § 202.

H. \V. Chaplin, for defendants.

COlVDIEltCID Al\'IONG THl-J 8JDVI'JHAL STATES. This act mnst rest on the constitutional ll\)\ver to regulate with fOl'dgll nations and among the several states. and those sections which al'e pertinent to the present controversy mllst 1"(,;;t upon the power to n'6'1date commel'ee among' the statt's. 'fhe mattpr with which we are dealing is "comm('rcp amollg the several states." It is il1lpot·tant, at the outset, to CO'llsi(Jf'r. in a gPll('ral way, tll(' conventional me aning of that phrase in fedeml jurisprUdence. the ontline of the fieW, as fixed by federnl decisions, and the way in which, and the extent to which, the federal government can deal with it. The m,'aning of the phrase, "commere-e among the several states," in the constitution, is a mf'llning- quite different from the meaning of those woros ns mere 1Dnglish words. The word "colllmerce," it is not necessary h!,rp particularly to discuss. It includes intercourse of many, if not all, lawful Idmls, and is broader thnn the word "trade." The constitutional phrase, howen'r, "conmwrce among the several states," has a highly artificial, conventIonal, and r(,fined meaning, fixed by prinei pIes of public policy and statesmanship, and in view of the complex ehamcter of our government, and the relative rights and duties of the states and the general government. Lewif;, FNler:ll Pawpr Over Commel'ce, p. 10; Paul v. Virginia, S 'Vall. IUS. Mobile Y. Kimball, 102 1:. R. mn. 702; COl' v. 1Grrol, 11G U. 8. 517. (i Slip. Ct. 1(pp. '175; Leisy v. Hardin. U. S. 100, 10 Sup. 01. Rep. 681; Gibbons v. Ogden, 9 Wheat. 1, 4; Kirkland v. Hotchkiss, 100 U. S. 4111; Hlaughterhouse Cases, 16 'Vall. 30, 75, 79; License Tax Cases, ::; 'Vall.

622

FEDERAL REPORTER,

vol. 55.

462; Muglet'v. State of Kansas, 123 U. S. 62:3, 8 Sup. Ct. Re-p. 273; Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. Hep. 6. Moreover, it is tnle of most, if not all, of the grants of power in the federal constitution, that the definHion of them is not only arbitrary, and fi'{ed by principles of public pnlicy, 1111t that it is not fixed even by any generic distinction, even an arbitrary one, but is fixed merely by degree of proximity or remoteness to state and federal rights. U. B. v. Dewitt, 9 ·Wall. 41; U. S. v. 94 U. S. 315; Trade-Mark Cases, 100 U. S. 82; I<'icklen v. l'axing Dist.,14;J U. S. I, 12 Sup. Ct. Rep. 810; :\faine v. Grand Trunk Ry. Co., 142 U. S. 217, 12 Sup. Ct. UP-po 121, IG3; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. Rep. 876; Coe v. Errol, 116 U. S. 517, U Sup. Ct. Uep. 475; U. S. v. Hall, 98 U. S. 34.'3. l';vpry citizen of our states has a dual politieal status. In one aspect, he is a citizen Ilf the Ullited States. In :mother aspect, he is a citizen of his state. It does not follow from the fact that he is a citizen of the United States that cong-ress cnn protect him agninst nll forms of fraud or violence or other wrong'; nor, from the fact that he is a citizen of the state, that the state Cllll so prot'cct hi10. Oongress can protect him only in that range and field of his life and affairs in which he prt,sents llilllself as a citizen of the United States, and not as a citizen of his His state can protect him only in that. l'Unge and fil'1(l of his life and affairs in which he presents himself as a citi:r,en of the state, and not of the rnitro The line bet ween his federal and his state l'ltizenship is an arhitrary line, and often a hazy and indefinite line,and it is nlways a of degree of proximity or NevertheleF<s, it is a constitutional line, which neither the federal governlllent nor the state can cross. U. S. v. Reese, 92 U. S. 214; U. S. v. Harris, 10(\ U. S. 629, 1 Sup. Ct. ltep. 601; U. S. v. Cruikshank, 92 U. S. 542; U. S. v. Pox, 94 U. S. 315; Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. Rep. u17. OONTUACTUAL CHARACTER OF THE STATUTE. Trade statutes have at different times been passed in various jurisdictions. Some of them have been aimed at labor, some at capital, but the distinction between legislation against labor and legislation against capital has always lip-en patent upon the face of the statutes. The ancient legislation against monopolizing and engrossing was legislation against capital. '1'he act of July 2, 1890, is directed at capital. It aims at dangers very generally supposed to have lately arisen out of enormous aggregations of capital. It aims at results effected, or to be effected, by combinations of capitalists and aggregations of capital. The evil aimed at in legislation against capital is evil of a contractual character, not an evil of mere fraud or .violence. '1'here was no general call for :l'ederal protection against an evil of the latter characte.r. The act of 1890 was aimed at a growing tendency to oombination by voluntary contract, in derogation of public right and public safety. It was at this, only, that the legislation was aimed; and it is this, only, which its .words are to be construed to cover. Attacks upon commerce by mere frand and violence, it is thus far left to the states to punish. This statute is not a Ku-Klux act. The "restraint" and the "monopolizing" of the statute. are contractllal restraint andmonopolizing,-not mere interference with commerce, as by robbery, assault, champerty, bringing of sUits, or other forms of violence, fraud or vexation. '1'he indictment proceeds upon the theory that the restraint and monopolizingof the statute. at least in the penal aspect of the act, are substantially eqUivalent to interference with trade, or at least to interference with the trade of rivals. Some of the counts allege conspiracy to interfere with or injure or rUin the business of persons apparently intended to be described as rivals, by mere fraUd, violence, or other noncontractual means. The other counts do not sp.ecify the means. They therefore fail to nllege contractual means. '1'he pleader has completely missed the true scope and effect of the statute. CONTRACT CRIMES. The defendants' counsel think it proper to discuss, at the outset, the place .whichcontract.occupies in the criminal law, and to consider the characteristics of those crimes which may aptly be designated as contract crimes.

UNITED STATES V. PATTERSON.

623

A familiar instance of crimes of contract is the unlawful selling of intoxicating liquors. To make the offense, an actual contract of sale must have been made, and the questions where, when, and whether an alleged contract of sale was in fact made are determined, not by any rules of criminal law. but by the ordinary principles of the law of contracts. The questions of locll.'l contractus, of principal and agent, of delivery, for example, are discussed and settled in liquor prosecutions precisely as in civil actions. Com. V. J1Jggleston, 1:!8 Mass. 408; Com. v. Burg'ett, 136 Mass. 450. A cash sale of liquors to a minor is not, under an ordinary selling statute, a "sale" to him, if in fact, although without the vendor's knowledge, he is buying for an adult. Com. v. Lattinville, 1:!0 Mass. 385; Com. v. Finnegan, 124 :Hass. 324; St. Goddard v. Burnham, Id. 578. 'l'he element of true contract, in contract crimes, is well illustrated by cases upon J1Jnglish statutes aimed at the "putting off" of counterfeit money to a confederate. The offense of "putting otI" is distinguished from the crime of uttering, in that an uttering, to be criminal, lUUst be made to an innocent person, and cloes not necessarily imply a contract, while a "putting off" of paper implies a true contract of sale, gift, or barter, to be established like any other sale, gift or barter. In Rex v. Joyce, (;\IS., O. B.,) Car. Supp. 184, the indictment (framed on St. 8 & 9, 'Vm. III. c. 2G, § 6, for "putting off" counterfeit money) charged that five counterfeit shillings were paid and put off for two shillings. The proof was that five bad shillings were sold for half a crown. "Thompson, C. B., and Heath, J., held that. as this was a contract, it must be correctly prov,ed as laid, and directed an acquittal." See. also. Rex v. Hedges, 3 Car. & P. 410; Rex v. 'Vooldridge, 1 Leach, 307; 1 East P. C. 180. 'rhe crime of "obtaining goods by false pretenses" is a crime of true contract. If I secure goods by false statements, my crime will be "false pretenses" or larceny, according as I do or do not effect a meeting of minds, which actually passes title. If, on the one hand, I represent to a vendor that I am rich, and thereby induce him to sell me goods upon credit, there is a true contract of sale between uS,-voidable, indeed, at the vl'ndor's option, for the fraud, but none the less a true contract until avoided,-and my offense is "obtaining goods by false pretenses." If, on the other hand, I get goods by representing that I am A.'s servant, and that A. has commissioned me to buy the goods for him, and get them as upon a sale upon credit to A., there is no meeting of minds between the vendor and A. There is no meeting of minds between the vendor and me, to the effect that I am to be the purchaser on credit. There is tlwrefore no meeting of minds at all, in true contract, and the offense is larceny. It is immaterial, in such case. that the supposed vendor intends to pass title, or thinks that he is passing title. 'rhe question is, not what he or the supposed purchaser intends or thinks, but is there, or is there not, a meeting of minds in contract? No contract, no crime. No reported cases pursue into greater refinement the question of contract or no contract than false pretense and larceny cases, close on the dividing lirw. THIS S'l'ATUTE A STATUTE OF CONTRACT CRIME. The act of 1890 is a statute of contract crime. Neither in its restraint nor in its "monopolize" provisions does it aim to punish anything else than (a) the making of contracts; or (b) the combining, conspiring, or attempting to make or to effect the making of contracts; or, possibly, (c) the combining or conspiring or attempting to support or enforce contracts. It is essential to guilt under it that a contract be made, or that contract results be the aim. This is, in substance, the view which has been taken of the act in the judicial decisions which have thus far ben made upon it, and is the logical result of the reasoning on which they are rested. If this were a small matter, the defendants' counsel would be quite well content to rest their argument upon those decisions. Since, however, no one of those cuses is a decision of a court of last resort, or is a binding precedent upon this court, or is on all fours with the case at bar, the defendants' counsel, particularly in view of the importance of the present case, will proceed to consider various lines of

624

FEDERAL REPORTER,

vol. 55.

reasoning and authority which seem to them, independently of those cases, to require an exe!usively contractual reading of the statute. The decided cases upon the statute will also be referred to at proper points in the discussion. TECHNICAL TER:\fS IN THE S'l'ATUTE. '1'he use of technical words and phrases in the statute is such as necessitates the contractual construction. It is a familiar principle of statutory construction that, where a new statute uses words or phrases already having a settled technical signification in the law, these words or phrases in the statut'e are to be taken in such technical sense, unless the context makes such a reading impossible. E. g. "Law of nations." U. S. v. Smith, 5 'Vheat. 153. "Utters." U. S. v. Carll, 105 U. S. 611. U. S. v. Britton, 107 U. So 655, 669, 2 Sup. Ct. Rep. 512. "Steal, take, and carry away." Id. "Murder." Ball v. U. S., 140 U. S. 118, 11 Sup. Ct. Rep. 761. "Negotiable;" "indorsement and delivery." Shaw v. Railroad Co., 101 U. S. 557. This principle is but an application of a broader principle, which finds expression, al"o, in the nile tllat statutes are to be presumed to depart as little as possible from the common law. Shaw v. Railroad Co., 101 U. S. 557; Brown v. Barry, 3 Dall. 3()5. A similar conservative principle is found in the mil' that statutory expressions borrowed from the statutes of another jurisdiction are to be taken in the meaning of their original domicile, as defined there by judicial construction. Uai/road Co. v. Moore, 121 U. S. 558, 7 Sup. Ct. Hep. 1334. 'l'his latter rule has just been applied to the int'erstate commerce act. Intprstate Commerce Commission v. Baltimore & O. H. Co., 145 U. S. 263, 282, 284, 12 Sup. Ct. Rep. 844. Such Ipgislation is pxtrpmely common with congress, and is, indepd, a distingUishing peCUliarity of its legislation. '1'he greater part of what may be called federal "lawmaking" legislation consists in the' adoption, frolll time to time, and upon dif'f'erent subjPcts, by a mere summary reference, and often by terse and elliptic designation, of a complete title or head of the common law, civil or climinal, or of some other body of jurisprudenCIC. '1'he chief part of the :f'ederal criminal law exists only in this way. See eases cited above, and Moore v. U. S., 91 U. So 270, 273, 274; Smith v. Alabama, 124 U. So 465, at page 47tl, 8 Sup. Ct. Hep. r,M, at page 569. It is a ft'ature of the operation of this prineiple that the summary adoption by a federal statute ofa particular head or title of law, civil or criminal, brings in that head of law, with all its details and all its exceptions, and that the statute has in law precisely the same reading which it would have, should it, as would a detailed Cod'e, rehearse at length, and minutely, all those details and exceptions. In U. S. v. Carll, cited above, a statute punishing, in terms, the "uttering" of forged fplleral paper, "with intent to defraud," was held to incorporate into the fedpral jurisprudence the common l:nv of uttering, with all its limitations, and to require, therefore, as an clement of the crime, (although not expressed in the statute,) knowledge that the paper was forged. It is an equally well-settled principle that where a word has a wellknown, settled, and technical (thongh recent) meaning,-not in the law, but in the language. of a trade, or in common speech,-the word, in a new statute, will be given that meaning. Arthur v. I..ahey, 96 U. S. 112; Arthur v. Morrison, Id. lOS; GI'l'I'nleaf v. Goodrich, 101 U. S. 278. EFFECT OF WORD "THADE" IN THIS STATUTE. The word "trade" would seem, in its meaning as an individual word, to be a narrower word than "commerce." (Manlhall, C. J., Gibbons v. Ogden, 9 ·Wheat. 1, 189; Miller, Const. c. 9,) and therefor(' to be embraced within the meaning of the word "commerce." .Even if it were a broader word than "commerce," it could not operate more broadly than "commerce" in this statute, for the constitutional power of congress stops with "commerce."

UNITED STATES V. PATTERSON.

625

The "trade," therefore, in this statute, is either with "commerce," or narrower than it, and in either view it is, as a mere individual word, surplusage in the statute. The word "trade" must, however, be given effect, if possible. Platt v. Railroad Co., 99 U. S. 48; Market Co. v. Hoffman, 101 U. S. 112. It will be unnecessary here to discuss the question how far the "restraint of trade" of the common law is enlarged in its field of operation by its application in this statute to "commerce," in so far as "commerce" may be broader than "trade;" for, if anything in this indictment comes under the head of "commerce," it also comes under the head of "trade." Nothing set forth in this indictment lies in those outlying zones, if any, of commerce, which extend beyond the confines of trade. MBANING OF' "RBSTRAINT OF TRADK" The phrase "restraint of trade," tllel'efore, upon the principles discussed above, operates to evoke from the common law, and to introduce into the federal jurisprudence, a complete head or title of the common law. 'We come, then, to the question of what is meant in the common law by "restraint of trade." 'rhis phrase, like many others, has at the common law two technical meaning"S,-a broader and a narrower. 'rhe broader is generic, and includes all technical "restraint of trade." The narrower is specific, and includes only unla wful "restraint of The broader conn'Ys no obnoxious suggestion. The mU'l'OWE,r is of obnoxious signification. In both its senses the phrase means contractual restraint, and only contractual restraint,-restraint by contract, and only by contract. Both tlw lll"oader and the narrower meaning are well set forth by Pub. Poi. W"::. 'L'he phrase, "in restraint of trade," is almost always used in the common hIw in connEction with the word "contract," or, less frequently, "combination." In its less common connection with tlre word "combination," the phrase merely indicates the joinder of a consi<lerable number of persons in a contract; limiting one or more, but usually all of them. \Vhen, as often happens, the parties to a considerable combina tion in "restraint of trade" do not trnst each other, and do not wish to have the burden of suing each other to enforce the contract, they often put their trade assets and plants into the hands of a stakE'holder, who is to carry out the restraining contract, either according to a detailed scheme, or aecording to his discretion, and so make the operation of the restraint, as it were, automatic. The stakeholder, in such case, becomes, by operation of law, a trustee. The result of the proceeding is, within tile meaning of the lnw word, a "trust;" and to this peculiar form of trust the common speech now applies, in an exc(,ptional scnRe, aIllI with a hostile signification, the word "trust." As to combinations in restraint of trade, see Id. 442-439. CONSPIRACY IN RES'I'RAINT OF TRADB IN THE CRIMINAL LAW.
It remains to be considered whether the phrase "in reRtraint of trade," either alone or in connection with the word "consllira.cy," or any other word, had in the criminal law a technical meaning broader than, or different from, its technical meaning in the civil law. Such separate technical meaning in the criminal law, to be effectual here, would have to be a meaning generally recognized, and not merely a matter of personal or occasional nomenclature. If such a meaning existed in the criminal law, it would appear in the approved text-books,-old and new. In the following text-books the words and phrases, "restraint of trade," and "conspiracy in restraint of trade," do not appear (unless in some editions which the defendants' counsel have not seen) in the index, nor does the title "Conspiracy," although it covel'S conspiracies dealing with trade, allude to "restraint of trade." Ko one of these books, it is believed, uses the phrase, "conspiracy in restraint of trade:" 4 Bi. Comm.; Hawk. P. C.; Archb. Crim, Pl'. & Pi.; Chit. Crim, Law; Hob. Crim, St.; 'Yoolr. Crim, Law; Paley, Conv.; Carr. Crim. Law: Bish. Crim, Law; Bish. Crim. Proc.; 'Yhart. Crim, Law; ·Whart. Crim, Pi.; Russ. Crimes; Davis, Crim, Law; Maugh. Law; Lewis,

V.55F.no ..5-·40

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Crim. Code; Washb. Crim.Law; May, Crim. I"aw; Lewis, U. S.Crim. Law; Lipp. Crim. Law; !:leard, Crim. Law; .Gabb. Crim. Law; Fish. Crim. Dig.; Pike, Rist. Crime. The only instances of.the use of the phrase, "conspiracy in restraint of trade," or "restraint of trude," in criminal law books, as far as the defendants' counsel -can,J:earn. are in the seventh edition of Hoscoe's Criminal Evidence, in Steph. Dig.Orim. Law, (1871,) and Erle, Trade Un. The chapter in Roscoe on "Conspiracies in Restxaint of Trade" was prepared by Sir James Fitzjames Stephen, as he tells us ill his "Digest of the Criminal Law," (1877, note 18, p. 383.) Sir James Stephen had then been engaged for more than 10 year:3 in the. study of the criminal law from a scientific point of view, and chiefly with reference to legislation. Steph. Hist. Crim. Law, (1883,) preface. 'What he wrote in Hf)SCOe was snbsequently elabomted by him in his "History of tll{' Criminal Law," without material change. The nomenclature, "Conspira.cies in Restraint of 1.'rade," ill Hoscoe, is therefore a personal nomenclature of a broad and scientific student of criminal law, looking more to the future than to the present or the past, and of such public and scholarly position as to be entitled, if he so desired, to make a slight change of nomenclature. 'The propriety, however, of his change of nomenclature, if there was such, docs not make his phrase a technical nomenclature of the common law. In his "Digest of the Criminal Law," (1877,) all that he says in the text llpon this head is included in articles 390-392, and note 18. But what he there sa.ys begs the question how far violence is to be considered in the matter of ·"restraint of trade." Erleon the Law Helating to Trade Unions is not a text book at all. It does not profess to be written peculiarly for lawyers, and is perfectly at liberty to use popular nomenclature. Moreover, it is a book written in support of a theory as to freedom of tl"ade at the common law,-a theory which, as Mr. Justice Stephen shows, is erroneous. . An examination of the English Statutes relating to offenses against trade fails, with the exception of one preamble, to detect the use, in a criminal 'sense, of the phrase, "in restraint of trade." (1720,) 7 Geo. I. St. 1, c. 13; (1725,) 12 Geo. I. c.34; (1749,) 22 Geo. II. c. 27; (1772,) 12 Geo. III. c. 71; (1777,) 17 Geo. III. c. 55; (1795,) 36 Geo. III. c. 111; (1800,) 39 & 40 Geo. III. c. 106, repealing 39 Geo. III. c. 81; (1824,) 5 Geo. IV. c. 95; (1825,) 6 Geo. IV. c. 129; (1844,) 7 & 8 Vict. c. 24. Preamble: "'Whereas, it is expedient that such statutes, [forestalling and regrating.] nnd other statntes made in hindrance and in restraint of trade, .be repealed." (1859,) 22 Vict. c. 34; (1875,) 38 & 39 Viet. c. 86. Here "restraint" is plainly conti-actual. TECHNICAL MEANING 01<' "MONOPOLIZE." The word "monopolize," and its noun, "monopoly," have in the law, and had at tlle time of the passage of the act, a technical meaning. In so far as they implied any exclusive privilege not resting upon a government franchise, <lr upon individual ownership of property, they involve the idea of contract. 4 Bl. Comm. 159; Ray, Contract. Lim. 210-245; Greenh. Pub. Pol. 670 et seq; Hicks, J., In re Oorning, 51 Fed. Rep. 205. It is not, in the legal sense, "monopolizing," to raise upon one's own ground all the corn or wheat for the subsistence of a community. Like the terms, "restraint of trade," and "contract in restraint of trade," "monopoly" has, in the common law, a broader and favorable sense, including just and rightful monopolies, such as patents or copyrights, and a narroWer and obnoxious sense, embracing only monopolies counter to law or public policy. "Monop·oly" is limited, in its broader or favorable sense, to public franchise, private <lwnership, or contract. In its narrower and obnoxious sense, it is limited to unlawful contractual means. It is not monopolizing for a band of desperadoes to invade an isolated community, and rob it of its winter's store. He only monopolizes, in the invidious legal sense of the' word, who with wrongful intent buys up, or attempts to buy up, the whole, or SUbstantially the whole, ()f a given commodity in a given locality, or at least contracts, or attempts to contract, for the control of it. Oases cited above. Section 2 of the statute, therefore, undertakes to .punish nothing but the malting of a particular form

UNITED STATES V. PATTERSON.

627

of contract,-uslUl11y a contract of purchase,-and conspiracies, and attempts to make, or to promote the making of, or perhaps to enforce, such contracts. 'fills effect of these technical words in the statute has been repeatedly recognized. U. S. v. Greenhut, 50 I<'ed. Rep. 469; In re Corning, cited above; U. S. v. Greenhut, 51 Fed. Hep. 205; In re Greene, 52 l!'ed. Rep. 104; In 1'0 Terrell, (U. S. v. Greenhut,) 51 Rep. 213. 'fhe mere fact that England and the several states have varied in details, or upon the shades of meaning and the precise scope of technical expressions, does not make it improper for congress to employ them. At the times of enactment of the various federal penal statutes, England and the several states have differed somewhat upon the details of the various offenses. Xone the less, there was a generally understood crime of "murder," "forgery," "robbery," "piracy," etc., settled in its outlines, and in most of its details, to such a degree that the federal courts could have no difficulty in fixing by its definition the memllng of those word8 in the federal statutes. Ball v. U. S., cited above; Moore v. U. S., 91 U. S. 270. CONTRACTUAL CHARACTER OF THE STATUTE SHOWN BY SECTION G. Section 6 of the statute in question provides: "Any property owned under any contract, or by any combination, or pur8uant to any conspiracy, (and being the subject thereof,) mentioned in section 1 of this act, and being in the course of transportation from one state to another, or to a foreign conntry, shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the forfeiture, seizure, and condemnation of property irpported into the United States contrary to law." 'fhe phrase, "property owned * * " pursuant to any conspiracy," does not refer to property of the character of burglars' tools 01' cOlmterfeiters' dies; that is, mere vulgar implements of crime. It means commercial property. By the procedure referred to in the section, it is not property to be destroyed, lilte gaming implements, but property to be soili. Nor is it property merely in the possession of conspirators; that is, property which they may have got by intimidation or robbery or assault. It is property "owned" pursuant to a conspiracy; that is, title has vested pursuant to a conspiracy. 'fhe conspiracy in the statute, therefore, is conspiracy aiming to operate by the making or the furtherance of limiting contracts, or contracts of aggregation, or monopolizing contracts. NARROWER MEANING OF "RESTRAINT OF TRADE" AND "MONOPOLIZE," THE MEANING OF THE STA'fUTE.
It has been remarked above that tlle phrases, "restraint of trade" and "monopolize," have each two significations in the common law,-a broader. including legal and illegal restraint and monopoly, and a narrow and invidious and highly elaborated meaning, including only certain forms of restraint and monopoly obnoxious to public policy. Such broader and narrower uses of a term in the law is very common. According to the case the court will apply the one or the other. It is really immaterial to the defendants in this case to consider whether the brrmdpr or the narrower ser,se of tllfse terms in the law is to be taken; whether the statute contemplates 'ill restraints and all monopolies,-lawful or unlawful at the common law,-or cnly such restraint or monopoly as was unlawful at the commonlaw,-since in either sense of the term the restraint or monopoly was contractual, and there is nothing of the sort in the indictment, and since the adoption of the broader meaning would justify, as will shortly be shown, the widespread popular suspicion of unconstitutionality of the act. The defendants could ask nothing better. They propose, however, to present their view of the statute. Their view is that the terms "restraint" and "monopolize" are used in the statute in their narrower and obnoxious meaning, and that the sole operation Of the act. therefore, is to import into the federal jurisprudence, civil and criminal, the technical condemnatory principles of the common law (civil and criminal, respectively) in respect of restraint of trade and monopoly, in the narrower and invidious sense of those words, and pos-

628

FEDERAL REPORTER,

vol. 55.

sibly to extend those principles slig-htly beyond the realm of "trade" into the outlying zones of "commerce," 01', in other words, that the statute operates precisely like most other federal illegalizing or penal statutes, merely to bring within the federal jurisdiction, to the extent of the federal constitution, principles or illegality and criminality already in full operation in the states and in the state courts. THE FOREGOL\"G THE ONLY PRACTICAL CONSTHUCTION. 't'he statute, read literally, punishes all combinations, all contracts, in restraint of interstate or international commerce, without exception; all conspiracies in restraint of such COlllmerce; all monopolizing, all attempts at monopolizing; all combinations and all conspiracies to monopolize any part of such commerce. Its language is swepping and urqualified. But at the date; of the passage of the act there existed, undpr constitutional protection, vestpd rights of property and of personal dppplHlcnt for their existence upon a complete interstate monopoly and restrnint. 'l'here were vestl;d patent and copyright rights, not only the rights of patentees and copyright holders, but, as necessarily incidpnt thereto. countless derivative rights of absolute monopoly and restraint. Gayler v. 'Vihler, 10 How. 477, 4\J4; Machine Co. v. 108 Mass. 7B; Gray, .J., Central 'l'ransp. Co. v. Pullman's Palace Car Co., 13\J U. S. 24, C.l, 11 Sup. Ct. Hep. 478. Existing rights of this eharacter, both principal and derivative, although born of statute, are nonp the less rights which congress call1lOL disturb. U. S. v. Burns, 12 'Vall. 246; Cammeyer v. Newton, 94 U. S. 22[); .James v. Campbell, 104 U. S. 31m. There are also common-law contract rights which it is beyond the power of congress to impair. Uailroad Co. v. Richmond, 19 Wall. 58n. An attempt to disturb such rights would be unconstitutional; and a statute ought, if possible, to be so construed as to make it constitutional. Presser v. State of Illinois, 116 li. S. 252, H Sup. Ct. Hep. 580; Parsons v. Bedford, 3 Pet. 43B; Brewer v. Blouglwr, 14PIc,t. 178; Supervisors v. Brogden, 112 U. S. 261, [) Sup. Ct. Hep. 125; U. S. v. Cpntral Pac. It. Co., 118 U. S. 23[), 6 Sup. Ct. Rep. 1038. Congress could not, therefore, have intended to use the words of the statute in their broad, literal sense. But a further exclusion must be made. Even in matters not protected by the constitution, as rights of or liberty, tIlPre are nevertheless many forms of restraint of trade, and many forms of monopoly, whieh the law recognizes. Under this head come many legal and partial restraints, which, by reason of their legal and partial character, are viewed as not in conflict with the policy of the law, and tlwrefore wert', at the time of the passage of the act, legal. For example, tr:ulers may lawfnlly allot themselvps exclusive territory, ('Vickens v. I<]vans, 4 Car. & P. 3[)tJ,) or othm'wise agree to "equalize" business, (Collins v. Locke, I·. It. 4 App. Cas. G74,) or to restrain an unl'<'asonable and ruinous competition, (Mogul Steamship Co. v. McGrpgor, (}ow & Co., L. It. [18tJ2] App. Cas. 25.) 'l'he tpst, always, is whetllPr a giv('n restraint is reasonable or not. Assuming that congress had powpr to change this, and to make all such restraints and monopolies, in so far as they were not constitutionally protpcted rights of property, illegal and penal, it is perfectly plain that congress mpant no such thing. If congress had power to make it illegal and penal for a small trader engaged in local interstate commerce to sell out his little business, and to bind himself not to renew it within 20 miles, congress certainly did not intend to do anything of the sort. Nor did congress intend to interfere at all with most of those restraints and monopolies which in the statutes haye always been regarded as right and legal, such, for example, as an agreement of the publisher of an edition de luxe to limit the number of copies; 01' of an author not to publish a rival text-book; or of a partlH'l', to give his exclusive attention to firm business; or of the owner of a trade secret, looking to the preservation of his secret. These and many other similar agreements would be prohibited by this statute if the broad construction wpre given to the term, "restraint of trade 01' commerce." It is patent that congress meant nothing of the sort.

UNITED STATES V. PATTERSON.

629

It is plain, then, that congress did not intend to cover all restraints and monopolies of intprstate trade. Certain restraints and Illonovolies must be eliminated as being vested rights; and others, as plainly outside tlw intpnlion of congress. But how is thc line of elimination to be drawn'! :"ot arbitrarily, by the courts, but by rules of law, if at all. 'L'he only rules of law that can he invoked are t1w foregoing ru!Ps of intprvretat!on, limiting tIll' statutI' (a) to contractual restraint and monopoly; and, (b) further, to such contractU111 restraint and monopoly as were all'l':Hly illegal or criminal at the common law.

THIS COXSTltUCTIOX ADOp'nm IN TRFJ LIWISLATIOX OF MANY
8.

The act in question is the result of a popular agitation against the developlllent of the modern "trust,"-an agitation which, since HiSS, has led to the passage of similar statutes in many states. It is proper to refpr to these statutes, as throwing light upon the probable intent of congress in the passage of this act. Platt v. Hailroad Co., 9tl U. S. 48. An pxamination of these statutes shows that they are in main declamtory of the common law. As we have seen, at cOlllmon law, contracts to limit competition, unduly raise pricps, or reduce production, were illegal. These statutes, in tE'rms, simply extend this principle to combinations or conspiraci('s to make such contracts, objpct !Jping to get around the practical difficulty of proving an actual binding contract to do these acts. In view of the surrounding "trusts," this difficulty had become a great obstacle in the way of justice. ThE'sP acts simply make illpgal any Clllnbination organized for the purpose of making ;;uch contracts, whether t1w contracts are completed or not. But in almost all it is expressly stated or implied that it is combinations proceeding by way of contract, not combinations using fraud or violence, that are within the contemplation of these statutes. 'rhe conspiracies to commit frauds or erimes were punishable by common law of such states. Tlw statutes referred to are: Laws Ala. 18!J0-1801, c. 202; Laws Ill. 1891, p. 200; Laws Iowa, 1890, c. 28; Laws Kan.1889, c. 257; Laws La. 1890, :'110. 86; Laws Me. 1889, c. 2H6; Laws Mich. ISS!), e. :!:!:); Laws :\Iinn. 181)1, c. 10; Laws Miss. 18lJO, c. 3(;; Laws Neb. 1889, c. ()l); Laws N. Y. 18B:!, c. 088, § 7; Laws N. C. 18Sn, e. g'i4; Laws S. D. 1SnO, c. 1:)4; Laws Tenn. 1891, c. 218; Laws Tex. 1889, c. 117. The act of July:!, 1890, intends, in its concise wording, to accomplish what tIlP above statutps spt forth at length, i. e. not to extend the range of contracts already illpgal at common law, as in restraint of trade, but to punish combinations aiming to rpstrain interstate trade by similar contracts. OX DEI"E:"DA:"TS' CO:'l1STItUCTION, RANGE OF STA'rU'rE ALMOST V:'l1LIMITED.
It is a general rule of criminal law that one who is engaged in an undertaking unlawful in itself is criminally lia hie, not only for direct results of his aetion, but for results naturally flowing therefrom, indirect and uncontpmplated. If A. joins B. in robbery, and B. uses such violence as to cause (lpath, A. and B. are hoth liable for murder. It is another general rule of criminal law that, where persons are guilty of a given offensp, they are also guilty of a criminal conspiracy to commit that offense, and that the conspiracy is not merged in the completed offense. It follows from these two vrinciples that, if two or more persons join in the eommission of an aet of an intrinsically unlawful character, they are criminally liable-First, for the act which they int"nd, and which they commit; second, for a conspiracy to commit that act; third, for indirect results; and, fourth, for a conspiracy to commit natural, although unintended, results. It follows that if two or more persons commit an act of murder, robbery, forgery, shop-breaking, store-burning, champerty, or maintenance, which in fact has a natural, although unintended, result of interferenee with interstate commerce, they are liable criminally for a con,;piracy to interfere with interstate commerce, if the statute broadly covers conspiracy merely to interfere with it.

630

FEDERAL REPORTEH,

vol. 55.

In most serious offenses, more persons than one are involved, and a large proportion of the serious crime, more or less directly, and often quite closely, affects interstate If, therefore, "restraint" of interstate trade and commerce in this statute means broadly interference with it, it follows that this statute operates to bring within the federal jurisdiction, in the guise of "conspiracy," a very large proportion of all the serious crime within the states. Furthermore, where congress takes jurisdiction of a given range of crimes, its jurisdiction is exclusive of that of the states. 'Where it takes jurisdiction, not strictly of the crimes, but of a federal aspect of the crimes, then acts may be punished twice,-once, as a breach of state law; again, as a breach of federal law. It follows, therefore, from the government's theory of this statute, either that tins statute has divested the states of jurisdiction of conspiracy in a great field of the criminal law, relating to murders, etc., or else that ordinary off,}nders are now liable to be punished twice,-once in the state courts, for the completed act, or for conspiracy to commit it; a second time" under this statute, in the federal courts, for conspiracy to commit it. These singular results of the government's theory of the statute sufficiently condemn that theory. For a similar course of reasoning by the snpreme court upon a question of constitutionality, see U. S. v. Harris, 106 U. S. 629, 642, at page 643, 1 Sup. Ct. Rep. 601, at pages 612, 613. QUES'l'ION OF CONSTITUTIONALITY.THE DEFENDAN'I'S' FOREGOING CONSTRUCTION ESSENTIAL TO CONSTITUTIONALITY, FROM SEVERAL POINTS OF VIEW.

If a federal statute undertakes to include, in one indiscriminate condemnation, classes of acts which congress can constitutionally punish, and classes of acts which congress cannot constitutionally punish, it is unconstitutio)llll.and void as to both classes of acts. U. S. v. Reese, 92 U. S. 214; U. S. v. Harris, 106 U. S. 62!.l, 642, 1 Sup. Ct. Rep. 601; Baldwin v. Franks, 120 U. S. 678, 7 Sup. Ct. Rep. 656, 763; Trade-Mark Cases, 100 U. S. 82; Virginia Coupon Cases, 114 U. S. 270. at page 304, 5 Sup. Ct. Rep. 921, 922;, I,eloup v. Port of Mobile, 127 U. S. 647, 8 Sup. Ct. Rep. 1380. "It wouid be. dangerous," !;lay the supreme court, by Waite, C. J., in U. S. v. Reese, 92 U. S. 214, at page 221, "if the legislature could set a net large enough to catch ullpossible offenders, and leave it to 1he conrts to step inside, and say who could be rightfully detained, and who should be set at large." In other words, when congress enters a given field of legislation, over which it has partial power, it must specify in its legiillation what part of the field it proposes to occupy, and the part so specified must be wholly within its constitutional reach. It goes without saying that a statute cannot be saved from the operation of this rule by construction, merely by reading into it the words, "this statute to operate so far only as it can constitutionally operate." Such a construction would nullify the rule. It is true that there may be a f('deral statnte, in part constitutional, in' part unconstitutional, of which the cC'nstitutional part may stand, while the unconstitutional part falls. It is necessary, however, to the operation of ihis rule, that the constitutional and the unconstitutional parts be capable of verbal separation, so that each may be read by itself. Baldwin v. Franks, 120 U. S. G7R. at page 686, 7 Sup. Ct. Rep. 656, 763; U. S. v. Reese, 92 U. S. 214, :it page 221. At the date of the passage of this act, there existed numerous vested rights, of lawful restraint and monopoly, constitutionally protected,-among them, patent, copyright, and other monopoly rights, and their derivative rights of' lawful restraint, particularly referred to above,-all. requiring for their existence an interstate operation. The letter of the statute cove,rs all these rights. If, when properly construed by the rules of statutory interpretation. it still covers them, it is unconstitutional and void. It cannot be construed' down. as we have seen, by the easy device of reading into it the words. "this act to operate only SO far as it is constitutional." Some other narrowing rule of construction must be invoked to save it. But the only rules which can"

UNITED STATES V. PATTERSON;

631

be invoked are the rules suggested above. The only way, therefore, to make this statute constitutional, is to read its words and phrases as including, in their civil aspect, only acts already unlawful in the states, and, in their aspect, only acts already criminal in the states. '.rhe defendants' counsel have no call to argue that the statute is constitutional. But it is familiar law that, when a statute lacks literal sufficiency merely by being terse and elliptical in expression, the courts may read words into it to narrow or enlarge it. U. S. v. Kirby, 7 'Vall. 482; U. S. v. Carll, lOu U. S. (nl, cited above. And a statute OUg'llt, of course, if possible, to be so construed as to make it constitutional. Presser v. State of Illinois, 116 lJ. S, 252, (j Sup, Ct. Rep. 580; Parsons v. Bedford, 3 Pet. 433; U. S. v. Coombs, 12 Pet. 72; Brewer v. Blougher, 14 Pet. 178; Supervisors v. Brogden, 112 U. S. 2(;1, 5 Sup. Ct. Rep. 125; U. S. v. Central Pac. R. Co., 118 U. S. 235, (; Sup. Ct. Hep. 1038. 'l'he foregoing construction is essential to constitutionality from another standpoint. Throwing out of consideration, for the moment, those lawful monopolies and restraints which are vested, and constitutionally protected, there are, we have seen, numberless lawful restraints of trade, necessarily involving interstate trade and commerce, all of which it is absurd to suppose that congress intended to cut off. '1'0 interpret the statute as cutting them off would be to make a new statute. If, among those restraints, not all of which CO'Ilgress intended to cut off, the statute provides no line between those which it does and those which it does not menn to cut off, blatute is unconstitutional for vaguen8SS in undertaking to delegate its legislative powers to the courts. U. S. v. Crnikshnnk, eitrd nbove. I<'rom still ,mother point of view the statute, except upon the defendants' fOl'E'going constructi0n of it, is unconstitutional. Congress cannot punish all acts of interference with interstate commerce, however rl·mote. It is only acts having a proximate relation to a head of constitntional power that congress can take cognizance 'If. But, as has been stated, the line b8twcen federal and state power is in almost every direction an arbitral';\' liue. The question of proximity or remoteness to the federal light is a matter of degree. '1'his is peculiarly true in interstate commerce. The line between the fedeI""al and the state jurisdiction is an arbitrary and fluctuating line, and the courts are constantl,v divid(O(} upon it. 'rile line fixed by the breaking of an oliiginal package, although a practical line, is a purely arbitrary line. The constitutional power of congressional legislation in interstate commerce begins with a vanishing line which ends in state commerce. At some point upon that line, in each class of transactions, must be fixed an arbitrary point between interstate and state commerce. Technical "restraint of trade" and "monopoly," in the unfavorable senses of those words, would be within the interstate power of congress; but not all interference with interstate trade or commerce would be within the constitutional power of congress, because it would be at the state end of the vanishing line. If the statute, when properly construe<l, itself provides no way of fixin15 the field within which it proposes to act, but undertakes to cover all interference with interstate commerce, then it covers such interference as is too remote for federal action, as well as that which is proximate. It embraces, therefore, with matters which congress can constitutionally deal with, matters which it cannot constitutionally deal with, and tllerefore follows under the constitutional principle now being discussed. The statute can be interpreted out of vagueness, and too great generality of reach, into constitutionality, only by restricting it to technical, contractual restraint of trade, and technical monopoly, in the unfavorable senses of those words. It is further essential to the constitutionality of the statute that there be read into it the reqnirement of a specific intent to invade interstate commerce, as such, and lmowledge of its character as interstate commerce, in so far as 8uch knowledge is e"senttal to this conscious intent. It has been stated above that, by the ordinary rules of the <'riminal law, persons are criminally liable, not only for direct, but for indirect, and even lmcontemplated, natural reSUlts of their action, and also for conspiracy to commit such indirect and uncontemplated results. A mere provision in a statute, or allegation in an indictment, therefore, of a conspiracy to do a certain thing,

632

FEDERAL REPORTER,

vol. 55.

does not necessarily require or imply actual knowledge, or a conscious, specific intent to do that particular thing. If two men, engaged in a plan of robbery, commit murder, without intending to commit it, and murder is a natural, although uncontemplated, result of their plan of robbery, they are guilty, within the meaning of the law, of a conspiracy to commit murder. This statute, therefore, taken literally, covers all cases where persons (at least when engaged in an act malum in se) reach, without knowing it, and without contemplating it, a result which amounts to restraint or monopoly of interstate trade or commerce, in whatever sense "restraint" and "monopoly" be taken. But most acts of serious wrongdoing are committed by two or more participants, and a large proportion of the serious crime more or less closely affects interstate commerce. It follows, therefore, that unless there be read into the statute a requirement of a specific intent of discrimination or attack upon federal rights, as such, every instance of robbery, burglary, murder, theft, shop-burning, store-breaking, champerty, or other act malum in se, in which there are two or more participants, which has the result, although uncontemplated, of restraining or monopolizing interstate commerce, is brought, by the act within the federal jurisdiction, under the guise of conspiracy, since every such joint act implies a conspiracy to commit it, and the conspiracy is not merged in the completed act. 'Without the requirement of intent and knowledge, therefore, a large proportion of the serious crime of the country may be punished under this statute, and possibly is brought by it within the exclusive jurisdiction of the federal courts. Such a range of the statute would be enormously extended by the theory of thp loose lllPaning of the phrase, "restraint of trade," and "monopoly." Undpr that meaning, and under the principles stated above, no limits could be set to the extension of federal criminal jurisprudence effected by this act. This reasoning forces us to the conclusion, eitlwr that the statute is uneonstitntional, 01' that a reqnirement of Imowledgp and speclfie intent to invade fe(leral rights must be read into it. U. S. v. Hanis, lOll U. S. (;29, 1 Sup. Ct. Rep, 601; U. S. v. }<'ox, 90l U. S. 313; U. S. v. 'Waddell, 112 U. S. 76, G Sup. Ct. Rep. 3G; Logan v. U. S., 144 U. S. 2(;3, 12 Sup. Ct. Hep. (;17. In order to save the act in question, we must tlwn read. "conspiraciE's in restraint of trade," etc., as if written, "conspiracies to restrain trade," etc., making an essential E'lement of the crime an intention on the part of the criminal to restrain interstate commerce. It is evident that such was the intention of congress. Section 2 of the act reads, "conspiracy to monopolize," showing that an intention to monopolize is an of the crime. It is not probable that cOllgrE'SS intpnded to give a wider scope to section 1. The natural expression would be "conspiracy to restrain." The fa.ct illat congress has departed from this natural form of words, and has used the term, "conspiraey in restraint of trade," etc., is accounted for by the reasoning of the first part of illis brief, nalllE'ly, that the words, "in restraint of trade," were used because of their well-known technical mE'aning'. ASIDE FROM QUESTION OF CONS'rrrtJTWNALITY, KNOWLEDGE E88EN'rIAL. A fifth limitation must be put upon the words of the statute. In terms, it coyers acts of 1he character desci'ilJed, whetlwr done with guilty knowleilge or not. There are, indeed, petty police of[pnsE's in which a knowledge of the facts is not an essential to criminality, and cccasionally a statute creating a serious crime has been lwld to dispensE' with the rE'quirement of knowl-' edge. Cases of the latter class, however, are few and exceptional, and been made, as a rUle, against a strong dissent, and against the weight of authority upon similar statutes; and invariably, where the reqnirement of guilty knowledge is hE'ld to be dispensed with by a statute, the decision is rested, not upon any principle of criminal law as to dispensing with knowledge, but upon a mere constlllction of the particular statute, in viE'w of supposed reqUirements of public policy, and in all cases upon the feasibility, in the particular matter in question, of obtaining all necessary knowledl,"C, and the propriety, therefore, in that particular field of action, of imposing upon one about to act the responsibility of inquiring into the facts, and of acting at his peril. S'E'e, in illustration of this, the decisions and the opinions in Com. v. Mash, 7 Mete. (Mass.) 472, as compared with Squire v. State, 46 Ind.

'1'I1is statute was never intended to punish persons who join together, UIHler an innocent mistake of fact, to enforce what they believe to Iw a rightful exclusive title in them. If the of an alleged trade secret believes it to be in fact a secret, and believes that an executor or trustee who sold it to him had a light to sell it, and, if he attempts thereuuder to trade by a limiting contract, or to monopolize it, he is not within this statute, even though mistalwn in his facts, If he is within it, then fm indietment 'I'm lie against every 'I'll() attempts to enforce his patent, if in fact his patent i,; invalid through priority or some other fact unknown to him; and no patentee can attmnpt to enforce his rights except at Ilis peril, and at the risk of an infamous punishment in case he turns out to have been ignorant of some prior use, which he could not by the strictest diligence have ascertained, or have supposed to have been made. It is to be observed tlrat if the knowledge required under the statute now in question is almost necessarily a knowledge of a conclusion of fact, or of ming'led law and fact, namely, a knowledge of right and title, or of a lack of right and title, knowledge of this character comes as fUlly within the gpneral rule as to knowledgp as does IUlOWlp(lge of pure nnd simple fnet. In Com. v. Srebbins, Reg. v. TwosI', Rex v. Hall, Levet's Casp, all cited immediately above, the matter o,f "fact" was a conclusion of law awl fact; nnmely, a question of title. It is to he further obsprved that the knowledge required is not kno,vlpdge that the defendants al'e combining and acting in concert, but Imowlpdge of thl' fnets which make thf'ir comllining or acting in concert penal. Person,,; acting in COllcprt, but acting innocently, by l'l'ason of ignorancl' of facts, lH'c(,ss;ll'ily Imow that they are aeting in coneprt; but that is not the knowlpdu;e which the law requires. knowle(lge, fU1'thenlJore, under this statute, must couprise knowledge, also, that the trade 01' commerce pro[)oH'd to he rpstrained or nlOJJopolized is of a lawful ebaraeter, and lawful in the hands of the rivals who em'lT it on, or aJ'e to carry it on, and knowledge that the commerce to be interfered with exists, or is to exi,,;t. UX GENERAL PltIXClPLES, WRONGFrL ESSI']X'l'IAL. Une thing more must be read into this statute; namely, intent to fix, control or raise prices to the injury of the public, or in some way to injure or dpfraud the public.

634

FEDERAL REPORTER,

voL 55.

In the case of the monopoly counts, the r'equirernent ,,;ould seem to flow from the very meaning of the word "monopolize," for that word, as used in the criminal law, it would seem, involves a wrongful intent, just as "uttering." As to the requirement of an intent to injure and defraud the public, and by raising of prices, in all trade offenses, see authorities. Indeed, the requirement of a guilty intent, or, as it is technically characterized, the "mens rea.," in all serious offenses, (not of u highly exceptional character, lide Rex v. Ogden, G Car. & P. 631; Reynolds v. U. S., flS U. S. 145; Reg. v. Downes, 13 Cox, Crim. Cas. 111,) is so nearly universal, whether specified in a statute publishing the offense or not, that it is to be read, as a matter of course, into every statute, unless there are highly exceptional grounds of public policy, in a particular offense, for dispensing ",·ith it. AN INTENDING BENEFICIARY ESSENTIAL.
It is a further essential, under the statute, that the contemplated restraint should be a restraint operating and intended to operate, by the very terms and operation of the restraint, to the benefit of some specific person or persons. The statute punishes, not interference with trade, but a "restraint" of trade, and "restraint of trade," ex definitione, implies a conscious bent'Ji· clary. So the crime of monopoly implies a person who is consciously to monopolize. He does not monopolize who exterminates trade, but only he who contractually gathers trade into his own hands, or into the hands of some one in concert with him. There can be no monopolizing without an intentional monotlolizee.

SUMMARY OF 'l'IlE OJ!' '.rIlE CRIME. '1.'he statute, when properly construed, requires, therefore, in conspiracy under it: 1. That the trade or commerce aimed at be teclmically interstate com· merce. 2. That the persons or things dealt with consciously be d'ealt with in their federal, and not in their state, aspect. 3. That a contemplated restraint or Illonopoly lJe a contractual restraint or monopoly; that is, that the conspiracy must consist in contract, or aim lLt the making or the 'enforcement or the fnrtherance of contracts. 4. That the contemplated re..'\traint or monopoly be a restraint or monopoly, excessive in degree, and unlawful at the common law. 5. That the trade or commerce proposed to be restrained or monopolized be a lawful trade or comIlle'rce. G. That the defendants have (a) knowledge that they or their privies no patent or other exclusine title or right to the trade or commerce proposed to bn restrained or monopolized; (b) knowledge that the trade or commerce proposed to be restrained or monopolized is unlawful, and lawful to thOSe) carrying it on in the given instance; (c) knowledge that the commerce in question is interstate commerce. 7. An inteut, by unduly raising prices or otherwise, to injure and defraUd the public by the cont'emplated restraint or monopoly, and an intent to restrain interstate commerce, as such. S. Au intending and conscious beneficiary of the contemplated restraint or mOIHJ:>oly. '1.'IIE INDIC'L'ymNT. Tlie incUctm('nt avers none of the ess(mtials of crime above set forth, and: violates ev·ery one (If the rules of plearling above cited. 1. The allegpd contemplatf'd restraint and monopoly was not contractual restraint or monopoly, but a mere rude and vulgar attack npon trade or trartH's by force, fraud, libel, and slander. 2. No count sets forth such means of effecting the proposed conspiracy as, if carried out, would be, in any reading or the statute, 1J. restraint or monopoly of interstate trade or commerce. Some of the counts set forth no all, or set forth means ';0 vaguely and generally as to be patently

UNITED STATES V. PATTERSON.

635

bad In tbis respect. Those counts which undertake to set forth mffins enfail to bring the persons, matters, and things alleged to have been proposed to be de:1lt with within the definition of "interstate commerce," or its snbjects or instruments, or within the federal or interstate asi)ect of those persons, matters, or things, as distinguished from their state aspect. It d0PS not follow, because one is engaged in interstate commerce, that every attack upon him, or upon any part of his business, is an attack upon interstate commerce. The attack may be upon him in his asp'ect as a subject of the state, and upon his matters or things only in so far as they are matters of mere state con.meroe. 'I'he indictment assumes that a person engagt'd in interstate commerce is exclusively engaged in it, and has no other aspL'Ct than that of a person engaged in interstate commerce, and that an interference with him, or with any part of his matters or things, is an interference with interstate commerce. Assuming it to be true that interferences with a person, or with matters or things, concerned in local commerce, may, by their necessary connection with certain interstate commerce, .be proximate attacks upon interstate commerce, the connection must be established by specific allE'ga tions of the indictment. It is not to be inferred. 'l'he indictment in this respect is entirely based upon Ii fallacy upon which the statutes and indictments were based in U. S. v. Cruikshank, U. S. v. Harris, and U. S. v. Fox; namely, the fallacy that the having a federal aspect brings a persoll and his matters and things within federal protection in all their aspects. 3. It does not appear by any count of the indictment but that the defendants had, or were acting under some one who had, an exclusive right to all trade and com'llerce, or all interstate trade and commerce, among the states, at h'ast as against the alleged rivals. '1'he defendants may have had Ii patent covering the cash registers, if <lny, in which the corporations named as proposed to be attache« dL'alt, if they fHd deal, or the defendants, or some one privy with them, may have :uld exelusive patent licE'nse for interestate trade in such registers from the various corporations, or from a pat<,ntee under whom all cJnimed title, or the defendants, or some one privy with them, may have bou"ht out a goud will or a trade secret from cOllwratiolls, 01' from SOlllE' one under whom all parties claimed, coverin;;the cash registers, if any, dealt in by said corporations. An indictment in the terms as t1!is indictment would lie to-day against every patentee in till' country, and Ilis agl'uts; and against Emerson's publisher alHl legatees; against en'ry one who has bought out a local good will; against ,every owner of a tracle-mark; in fact, agaim't everybody who owns anything whith is the subject of interstate commerce. 4. It is not avelTed that the commerce, if any, being carried on, or proP<h'led to be cunied 011, by said corporations, other than the Xatiol1al COlllpany, was Ii lawful commerce. It may have been in violation of a limited and lawful contract made by them, of restraint, or of division of territory. 5. The interstate commerce (an essential of this crime, and a jurisdictional is alleged only as a conclusion of law. It leaves it for the prosecutor, and not for the court, to decide whether what the prosecutor con:siders interstate commerce is "interstate eommerce," and of the statute's ·character, or not. But that "is a question of law, to be decided by the (.'Ourt, not the prosecutor." Waite, C. J., U, S. v. Cruikshank, cited above. 6. It is in no count allf>ged, even as a conclusion of law, that the "trade and COlllmerce '" * * between and among the several states" ullegerl to have bC'en aimed at (granting that it was such) was within that limitell cla>!8 'of cummerce among the several states which alone the statute cuvers. As has LJE"'n suggested above, the phrase, "commerce among the several states," 'is llU f>xpression of language, accurately includes a great deal of commerce whieh is not within the meaning of the phrase, as used in the ccnstitution, is evpn less within the still more restrictE'd meaning of the phrase in the statute. 'I'he indictment, therefore, runs counter, in this respect, to the l'ule of pleading that where a statute covers, in terms, a whole class of things, but really intends only a subdivision of the class, the indictment must bring the things which it alleges within the subdivision. The only way to allege interstate commerce in an indictment is the way attempted in the

636

FEDERAJ, REPORTEr, vol.

55.

first four. counts of an indictment previously found in this district against these defendants, (No. 1,209,) viz. by describing in detail the operations supposed to constitute interstate commerce. In that former indictment the pleader was in this particular on the right track, although his pleaded facts were insutlicient to make out interstate commerce. It is not open tu the government to contend that the court can judicially know that there was, or was proposed to be, a commerce "among the sevf'ral states," of the statutory character, in "cash registers." There ape articles in which the court may, perhaps, be saId to know, as matter of law, that there is at all times such commerce. 'Vith "cash registoers" it is different. It is very doubtful if the court can be said to know what a "cash register" is. Jt is certainly ditlicult to Sl'e how the court can know in what sense the term is used in this indictment. Until lately the only meaning which thl1 phrase would suggest is that of an account book for cash entries. Now, in so far as the indictment may be deemed to refer to books of cash entry, the court cannot know that there was at the time in question interstate COllimerce, or expected or proposed interstate commerce. Blank cash books may be all manufactured and sold within the legal limits of state commerCl'. The abse-nce of a specific allegation of interstate commerce, therefore, in this meaning of the term "cash register," would be fatal. If the court should take the expression "cash register" in the indictment in a broader sense, as including both a.ccount books and also mechanical contrivances, thf'n the illdictment, as will be more pa.rticularly contended below, under an appropriate head of this brief, would fail, for indefiniteness; for the dl'ferHlants ought certainly to be apprised whether it is a commerce in machinery, or a commerce in blank books, that they are charged with attacking. If tll!' court should find, upon the face of the indictment, that the "cash registers" referred to in the indictment are the mechanical devices recently introducpd into the market, the court will surely apply, as judicial knowledge, not a, fraction, but the whole, of its actual knowledge, and will judicially ImmY that these new mechanical devices profess tD exist illrder letters that the different manufacturers claim under patent rights; nnd that tlw questions of free or restricted commerce, and of monopoly or no monopoly. are mere questions of pat-ent controversy,-a field of controversy never cop·· templated by the act of 1890. If an indictment were to· allege, on the part of the Bell Telephone COltlpuny !lnd its officers and agents, a conspiracy to restrain the trade and COlli.. mcrce of all other persons, and to monopolizr, to themselves and their company the tl'Ude and commerce in "Bell telephones," would not the court, if it applied to the indictment judicial knowledge that there are such telephones, and that there is commerce of the statutory character in them, also apply judicial knowledge of the fact of a lawful monopoly, and an right to CDmmerce in them, or at least a bona fide claim thereto, not to be tried under a penal statute? These counts present also the defect (which exists in the othl'r counts) 01. failing to allege that the commerce was proposed to be continued. It is future transactions which a conspiracy contemplates,and there is no allegation that the commerce of these counts was proposed to be continued from and after the time of the alleged conspiracy. It is fatal to a conspiracy indictment that the object of the conspiracy mny have been a myth. 7. No count of the indictment has any averment of knowledge or intent. If the olt(mse necessarily involve knowledge and intent, they must be alleged. An indictment, for example, for conspiracy to commit burglnry, mllst avpr a com;piracy, not merely to break and enter a dwelling house in the nighttime, but a conspiracy to lweak and enter with intent to steal. 8. No count alleges a proposed cDntractual beneficiary of the contemplated restraint or monopoly. It does not appear that the defendants were in the business, or had any control of the business, or that the National Cash Register company was a party to the conspiracy. or knew of it,or would consent to protit by it. It is not made a defendant. although the stntute contemplates corporations. It stands, upon the restraint counts, (counts 1 nnd 2,) as a mere unconscious, passive, proposed bpneficiary, without whose acceptance and co-operntion and indorsement there can be no restraint. It

UNITED STATES V. PATTERSON.

637

is not alleged that the defendants conspired merely to extinguish the trade of the other corporations. It appears that they combined, if at all, merely to subordinate their trade to that of the National Company; but, in the absence of averments bringing in the ::s'ational Company as a willing beneficiary, this restraint would be impossible. The averments of the restraint COlUlts are therefore, in this respect, impE'rfect, absurd, and impossible. The crime of monopoly implies a conscious monopolizing. A conspiracy of sevE'ral men, without any knowledge, to drive all the trade in town into my shop, out of love for me, or out of hatred of my rivals, but without my knowlE'dge, and without benefit to the conspirators, is an unlawful conspiracy, under state laws, against the right of my neighbor to live a peaceful life, but it is not a conspiracy to monopolize. It is not averred here that the defendants were in a position to or expected or intended to monopolize into their own personal pockets. '1'here is a faint hint that the intended monopolizer was the National Company, but only a hint. Acceptance of a benefit may indeed sometimes be presumed by law; but a corporation, any more than an individual, will not be presumed to have accepted itself into a criminal combination. It is a universal rule, as to those crimes which consist in contract, or COllibination, or meeting of minds, that there must be, not a mere fictitious appearance of a meeting of minds, but an actual contract, or other meeting of minds, as in civil transactions. ",Vhere the statute speaks of monopolizing "a part of the trade," it must mean the whole of a specific part; for while the word "monopolize" is not to be taken in a mathematically exact sense, requiring that a monopolist of flour should have, or intend to have, every teaspoonful of flour in the United States, it does mean a substantial control of a great part of anyone given article, or enough to enable him to dictate to the market. 'TIle monopoly alleged in counts 5 to 11 and 15 to 18 is merely a monopoly of the business of five corporations named. It does not appear how much business they did, or what proportion it bore to the whole business of the country in cash n,gisters. It is consistent with the indictment that it was extrpmPly trifling, and that to se<'nrc the whole of it woul<l not constitute the ofIPnse of monopolizing. Men cannot bp indicted for comhining to monopolize wheat by a nlPI'(' averment that they combined to monopolize certain wheat when owned by A. B. Kothing essential is to be assumed, in a. criminal cas<,. Tlw IUllllPS of the rival companks sound well, but the court not know that they cUd any appreciable amount of business. '1'he defendants, for all that appears in tlw illllictment, are :Mrs. Partingtons attempting to sweep lmck the Atlantic oc·ean. It should lune shown t]mt monopolizing' the business of tlw rival companies would have amounted to a monc.polizing of 11w business in easIt registers. :Moreover, upon the language of tItese counts, a monopoly may well have been impossible. '1'hE're is no averment that the Kational Cash HE'gistl'1' Company waR to be interfpred with, and, for all that aplwarR, it was not known to tIw transaction. It Illay well have been entirely vain for tIte defendants, if they left the National Company free, to attempt to monopolize tIte cash rpgiRter business, even if tIwy lIlonopolized the business of the other companieR. Perhaps it had 99 pel' cput. of the whole business. If so, without its co-operation, monopoly would be impossible. 9. This is a patent suit. never intl'ndpd, under this statute. to try patent contl'ovprsies to a jury, in a criminal ('ourt. An indictn1l'nt might undoubtedly be 1'0 drawn aR properly to bring into a eri'11inal e:1S(' a plain :lnd simple issue, to the effect that the defewlants clainll'd under a IMtent.lJut h,ul no prNense, color, or RllOW of a -patent, amI hehl no ](otter'S va tput. :nlll no lieense under any letters patent. But here some of the counts an'r that tIl!' (Jef(-'ndantI' jnstify uncle,r letters patent. There iR no avernwnt that tIte patent daim is not valid, and the queRtion raisl'd by these connts must tllE'l'pfore resolve itsdf into a question of validity, or tIle construetion, or both, of tIlE' letters patent. '1'I1('se COl liltS, tllPl'eforc" seem calculate,l to launch tIte ('ourt into a controversy before a jury over a complicated tissue of pat(mt questions, whlch might occupy a long time In t11al. '1'hi,.; ",as never intelHled. "'Iten patents appear in an indietment, as an invalid pretense or justification, it

638

FEDERAL REPORTER,

vol. 55.

llhcmld be .alleged that the claim set up under them Is a mere sham claim, and only colorable. 10. The indictment Is bad for vagueness and uncertainty, In..DO count does it approximate to the particnlarity and certainty required by th{' courts of the United States, and emphasized particularly In U. S. v. Simmonds, 96 U. S. 300; U. S. v. Cruikshank, cited above. In some· of the counts the .defclldants are simply charged with conspiring to rp-straln or ,to monopolize certain c(' mmcrce. Among what states it was, by whom caryled on, or proposed to be carried on, or where .01' how to be restrained or monopollzed, these counts do not disclose. The other counts specify the trade or commerce .as being carried on by four corporations named, but 'Where,.and among what states, these counts do not disclose. Nor does the char.Rcter oftha "cash rC/,,'isters" appear, . Were they machines, or tally boards, or -books? Tested by the requirE,'ment that the defendants must be sufficiently apprised of the details of the charge against them to enable them to prepare for trial, all the contents are bad. In U. S. v. Simmonds, cited above, one was charged having "caused and procured" a still to be used. It WU8 held that he was entitled, under the requirements of criminal pleading,. to know whom ha was charged with having caused or procured to use the still. 10. His not averred in any count to what extent trade was carrieo on. Can the court assume, In a criminal case, an appreciable amount of commerce of the statutory character? .

PUTNAM, Circuit Judge. I do not think thE're is any constitutional question in this case upon any view of this statute, 01' upon the face of the indictment. 'The right of free commerce I;ranted by the constitution (Crandall v. Nevada, () Wall. 35, and the Case of State Freight Tax, 15 Wall. 232) permits broad lpgislation; and in no senseis this statute as broad as the Revised Statutes (section 5(08) on the principle of construction applied to the latter in U. S. v. Waddell, 112 U. S. 76, 5 Sup. Ct. Rep. 35. See Logan v. U. S., 144 U. S. 2()3, 12 Sup. Ct. Rep. ()17. There may be practical difficulties in applying the statute in such way as to prevent conflicts v;ith state jurisdictions, but these can only arise on the development of the facts at the trial of a particular case, and even then the court will have the g"uidance of the supreme c.ourt in He Coy, U. S. 731, 8 Sup. Ct. Hep. 12{);); Cross v. North Carolina, 132 U. S. l:n, 10 Snp. Ct. Ht'p. 47; and In re Green, 134 U. S. 377, 10 Sup. Ct. Rep. 586. Those cases show that there need not necessarily be a conilict of juri sdiction. This statute is not one of the class where it is always sufficient to declare in the words of the enactment, as it does not set ont all the elpmentll of a crime. A contract or combination in restraint of trade may be not only not illeg-al, bu t praiseworthy; as, where parties attempt to eng-ross the market by fnrnishing the l)('st goods, {)r the cheapest. So that ordinarily a case cannot be made under the statute unless the means are shown to be illegal, and tlwrefore it is ordinarily necessary to declare the means by which it is intended to engross or monopolize the market. And by the well· ilettled rulps of pleading it is not suflicient to allege the means in general language, but, if it is claimed that the means used are illegal, enough must be set out to enable the court to see that they are so, and to enable the defense to properly prepare to meet t:!::.e ,charge made against it. I regard the rule laid down by the supreme court in U. S. v. Hess, 124 U. S. 483, 8 Sup. Ct. Rep. 571, as applying to this case; and I

UNITED STATES fl. PATTERSON.

639

thfnk the case of U. S. v. Simmonds, 96 U. S. 360, is easily distinguished. If it is not, the later case will, of course, control. In reference to the suggestion of the counsel for the United States, as to at common law alleging conspiracy to prevent a man from pursuing his trade, it is sufficient to say that to conspire to prevent a. man {rom pursuing a trade which he is entitled to pursue is in itself illegal. But the case at bar is not at common law, and the proceedings under this statute are peculiar to the statute. I think the rule!! laid down in U. S. v. Hess distinguish this indictment on this point from all the cases and principles of law relied on by the United States. The allegations of what was done in pursuance of the alleged conspiracy are under this particular statute irrelevant, and cannot be laid hold of to enlarge the necessary allegations of the indictment, and are of no avail. I think it was so conceded at the argument. If not, there is no question about the law. The foregoing cDIlsiderations dispose of counts 1, 2, 3, 6, 7, 8, 11, 12, 13, 15, 16, and 17. That the means are alleged with "reasonable precision" in the remaining counts, appears from the practical application of the rules of pleading appropriate to this case made in U. S. v. Waddell, 112 U. S. 76, 5 Sup. Ct. Rep. 35. Some of the allegations in each count may be insuflicient, but these are only surplusage. Counts 14 and 18 seem snflicient under the second section of the statute, as will appear from what I have to say hereafter. The remaining counts, 4, 5, 9, and 10, are laid under the first section. Counts 4 and 9 allege an intent to hinder and preYent all persons and corporations, except the corporatIOn controlled by the defendants, from engaging in the trade and commerce described in the indictment, while counts 5 and 10 only allege a purpose to destroy the competition of the four corporations named. without out any purpose of engrossing or monopolizing the business as a whole. or any like purpose. The court does not feel at all embarrassed by the use of the words "trade or commerce." The word "commerce" is undoubtedly, in its usual sense, a larger word than "trade," in it" usual sense. Sometimes "commerce" is USf'U to embrace less than "'tr·a,det· and sometimes "trade" is used to embrace as much as "commerce." They are, in the judgment of the court, in this statute synonymous. The court is well aware of the general rule which has been several times (twice certa..inly) laid down-by the supreme court of the United States, that in construing a statute every word must have its effect, and the consequent presumption that the statute does not use two different words for the same purpose; but this rule has its limitations, and it is a constant practice for the legislature to use synonyms. A word is used which it is thought does not perhaps quite convey the idea which the legislature intends, and it takes another word, which perhaps has to some a little different meaning, without intending to more than make strong the purpose of the expression in the statute. In the legislation of congress analogous to this under consideration there is a marked case of the use of synonyms. Rev. St. § 5438.

640

FEDERAL REPORTER,vol.

55.

uses the words "false, fictitious, or fraudulent;" then the words "any false bill, receipt, voucher;" then the words "agreement, combination, or conspiracy;" then the words "charge, possession, custody, or control," mainly synonyms; while section 5440 uses simply the word "conspire." There would be no question that the word "conspire," in section 5440, means all that the three corresponding synonyms, "agreement, combination, or conspiracy," mean in section 5438. Rather as a matter of curiosity than because they particularly impress my mind, I have taken off some other instances. The Massachusetts statute cited in U. S. v. Britton, 107 U. S. 670, 2 Sup. Ct. Rep. 512, uses the words "secular labor, business, or em· ployment." The words "false, forged, and counterfeited" are used over and over again in U. S. v. Howell, 11 Wall. 436, 437; "peddler and hawker" are in constant use in criminal law; "drinking house or tippling house" is of frequent use in the statutes; so are "goods and chattels." These are all referred to in Bishop on Statutory Crimes as synonymous. There is also the very special case where the criminal statute contained the words "ram, ewe, sheep, and lamb;" and it was held in Reg. v. McCulley, 2 Moody, Cr. Cas. 34, that the word "sheep" covered the two preceding words, and they might be rejected as surplusage. Sutherland on Statutory Construe· tion says that words which are meaningless have sometimes been rejected as redundant or surplusage. So in this statute I think the words "trade or commerce" mean substantially the same thing. But the use of the word "trade" nevertheless is significant. In my judgment, it was probably used because it was a part of the common-law expression, "in restraint of trade," as has been carefully pointed out by the counsel for the defense. This has become a fixed, well·known, common-law expression; and by the rule of interpreta· tion as given again in Sutherland on Statutory Construction (sec· tion 253) it has been here used in the sense in which it has been used generally in the law. And these words, "in restraint of trade," lead up directly to what I think is the true construction· of this statute on this point. I think it is useful to analyze the statute. Separating it into parts, we have-First, contract in restraint of trade; second, combination in restraint of trade; and, third, conspiracy in restraint of trade. There can be no question that the second and third parts, as thus put, receive color from the first. Moreover, it is important to note the rule that this whole statute must be taken together. The second section is limited by its terms to monopolies, and evi· dently has as its basis the engrossing or controlling of the market. The first section is undoubtedly in pari materia, and so has as its basis the engrossing or controlling of the market, or of lines of trade. The sixth section also leads in the same direction, because it provides for the forfeiture of property acquired pursuant to the conspiracy. Undoubtedly the word "conspiracy" in that section has reference to the same subject-matter as in the first. If the intention of the statute was that claimed by the United States, I think the natural phraseology would have been "to injure trade," "to reo strain trade."

UNITED STATES V. PATTERSON.

641

We now at the point where the paths separate. Careless or inapt construction of the statute as bearing on this case, while it may seem to create but a small divergence here, will, if followed out logically, extend into very large fields; because, if the proposition made by the "Cnited States is taken with its full force, the inevitable result will be that the federal courts will be compelled to apply this statute to all attempts to restrain commerce among the states, or commerce with foreign nations, by strikes, boycotts, and by every method of interference by way of violence or intimidation. It is not to be presumed that conh'Tess intended thus to extend the jurisdiction of the courts of the United States without very clear language. Such language I do not find in the statute. Therefore I conclude that there must be alleged in the indictment that there was a purpose to restrain trade as implied in the common-law expression, "contract in restraint of trade," analogous to the word "monopolize" in the second section. I think this is the basis of the statute. It must appear somewhere in the indictment that there was a conspiracy in restraint of trade by engrossing or monopolizing or grasping the market, and it is not sufficient simply to allege a purpose to drive certain competitors out of the field by violence, annoyance, intimidation, or otherwise. Something has been said in this connection touching the debates in congress. It is apparently settled law that we cannot take the views or purposes expressed in debate as supplying the construction of statutes. In U. S. v. union Pac. R. Co., 91 U. S. 72--79, and elsewhere, the supreme court has laid down this rule. But tliis does not at all touch the question whether or not one can gather from the debates in congress, as he can from any other SOUl'ee, the history of the evil which the legislation was intended to rt'medy. The debates on this point are very instructive; but they fail to point out precisely what incidents or details of the great evil under consideration were to be reached by this legislation. What I have already said disposes of counts 5 and 10, which do not allege any purpose except to destroy the competition of four corporations named; and they leave for consideration only the counts 4 and 9, which do allege a purpose of engrossing, monopolizing, or grasping the trade in question. Such being the case, acts of violence and intimidation may be alleged as means to accomplish the general purpose. Instead of lying outside of the statute, they may aggravate the offense. They are within the logic and spirit of the statute, which are not to be defeated by distinctions which its letter does not suggest to the ordinary mind. Violence and intimidation are as much within the mischief of the statute as negotiations, contracts, or purchases. The former are often used to compel the latter. This line of reasoning applies to both the first and second sections, and finds a sufficient nlace for every word ill each. I find in all the counts which I allow to stand, allegations of an intent to engross, monopolize, and grasp, and of meaU-3 clear· ly unlawful, and adapted to accomplish this intent. v.55F.no.5-41

642

FEtJERAL REPORTER.

vol. 55'.

Iha."Veexamined all the .cases which have beenetted to me as referring to this statute, and I believe that counsel have me every case which has been decided in connection with it; but none of them meet the issue which is raised here. Therefore an the expressions in them supposed to touch this case are to be regarded as mere dicta. The result is that counts 4, 9, 14, and 18 stand, and the others are quashed.

In

N

GLAENZER et at

In re S'l'ERN.

In re MARQUAND.

(Clrcult Court of Appeals, Second Circuit. May 5, 1893,)

t.

CuSTOM8 DUTIES ACT OCT. 1, It'llO.

CLASSIFICATION -

COLLECTION OFANTIQUITIE8 -

TARIn

Where a known and acknowledged collection of antiqnities was purcbased abroad, and 8(>Ot to tills country, the fact that a single vasl' of such coJ)('ction ehlUlcpd to be sent with a &>parate iuYolce, flnd withont its com· panions, does not disturb Its character as a "collection of lwtiquitlps," ad· lllls.-;ible free of duty undflr Taritr Act Oct. I, 1bl:lO, par. 524, (26 StaL 604, c. 1244.)

8.

SAME.

Four tap<'strles, of different sizes, each belonging to a period prior to 1700, and purchaspd for the purpose of blAng added to a of cu-rlollities' and brlc-a-hrac, constitute a "collection of antiquities," within TarUr Act Oct. I, 1800, par. 524-

8.

SAME.

A bronze statuette, Imported tor the purpose of belnl\' added to, and becoming a part of, a pre-pxisting collection, is not a "colll'ction of antiquities," within Tariff Act Oet. I, umo, par, 524, but is dutiahle at 15 per cent. ad valorem, as statuary wrought by hand, under paragraph 4G5.

from the Circuit Court of the United States for the South· ern District of New York. Thomas Greenwood, Asst. U. S. Atty., for collector. Edwin B. Smith, for appellpe G. A. GIHPnzer & Co. W. Wiekham Rmith, for appellant Louis Stern. Frl..'(}eric H. Detts, for appellant Henry G. Marquand. Rf'fore SilIPMAN, Circuit Judge, and TOWNSE},l), Distrkt Judl.re. SHTPMAN, Circuit Juoge. The!'!e three appeals involve the qnestion of the construction of paral.'Taph in the free list of the tariff act of October 1, 1890, which is as follows:
"Cftblnets of old colne cnd mpdals, and other of antiquities. But fhp term 'antlq III tl",s,' ali nsed In this Ret, Khall include cnl.v such article. as are sultaule for souvenirs or cllblnetcollectlons, and willch shall have been produced at any period prior to the year seventeen hundred."